No. 45

 

                                                     VOTES AND PROCEEDINGS

 

                                                                      OF THE

 

                                                         HOUSE OF ASSEMBLY

 

                                                                                                                                  ____________

 

 

                                                                           THURSDAY 9 MARCH 1995

 

 

 1         Meeting of House

                  The House met pursuant to adjournment.  The Speaker (Hon. G.M. Gunn) took the Chair and read prayers.

 

2         Postponement of business

                  Ordered - That Notices of Motion: Private Members Bills/Committees/Regulations Nos 1 to 4 be  Notices of Motion for Thursday next.

 

3         Economic and Finance Committee -  Operations of the MFP Development Corporation 1993-94 -Motion to note

                  Mr Becker, pursuant to notice, moved - That the Thirteenth Report of the Economic and Finance Committee on the Economic and Financial Aspects of the Operations of the MFP Development Corporation 1993-94, be noted.

                  Debate ensued.

                  Question put and passed.

 

4         Voluntary Euthanasia Bill

                  Mr Quirke, pursuant to notice, moved - That he have leave to introduce a Bill for an Act to provide for the administration of medical procedures to assist the death of patients who are terminally ill, and who have requested the procedures subject to appropriate safeguards.

                  Question put and passed.

 

                  Bill presented and read a first time.

                  Mr Quirke moved - That this Bill be now read a second time.

                  Ordered, on motion of Mr Atkinson, that the debate be adjourned until Thursday next.

 

5         Public Works Committee Report - Adelaide Magistrates Court Redevelopment  - Motion to note

                  Mr Ashenden, pursuant to notice, moved - That the Report of the Public Works Committee on the Adelaide Magistrates Court Redevelopment, be noted.

                  Question put and passed.

 

6         Postponement of business

                  Ordered - That Order of the Day:  Private Members Bills/Committees/Regulations No. 1 be postponed and taken into consideration after Order of the Day: Private Members Bills/Committees/Regulations No. 2.

 

7          Prostitution (Decriminalisation) Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Ordered, on motion of Mr Lewis, that the debate be further adjourned until Thursday next.

 

8         Prostitution Regulation Bill

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

 

9         Suspension of Sessional Orders

                  Mr Meier, without notice, moved  - That Sessional Orders be so far suspended as to enable Notices of Motion: Other Motions to be postponed until Orders of the Day: Private Members Bills/Committees /Regulations are disposed of.

                  Question put and passed, without a negative voice, there being present an absolute majority of the whole number of Members of the House.

 

10       Prostitution Regulation Bill

                  Debate (interrupted by the foregoing motion) resumed.

                  Ordered, on motion of Mrs Kotz, that the debate be further adjourned until Thursday next.

 

11        Lottery and Gaming (Two up on Anzac Day) Amendment Bill

                  Order of the Day read for the further consideration in Committee of this Bill.

 

                                                                                      In Committee

                                                                                                Clause No. 2 further considered.

                  Mr Lewis moved on page 1, line 19 after the words "Returned Services League", as inserted by the amendment of Mr Scalzi, to insert the words "and any premises owned or occupied by the Defence Forces of Australia".

                  Question - That the amendment be agreed to - put.

                  Committee divided (No. 1):

 

                                          Ayes, 24.

 

                              Hon. M.H. Armitage

                              Mr Ashenden

                              Mr Atkinson

                              Hon. S.J. Baker

                              Hon. F.T. Blevins

                              Mr Brindal

                              Mr Buckby

                              Mr Clarke

                              Mr Condous

                              Mr De Laine

                              Mr Evans

                              Mrs Geraghty

                              Ms Hall

                              Ms Hurley

                              Mr Kerin

                              Mr Quirke

                              Hon. M.D. Rann

                              Mr Scalzi

                              Ms Stevens

                              Hon. R.B. Such

                              Mr Venning

                              Mr Wade

                              Ms White

                              Mr Lewis (Teller)

                              Noes, 15

 

Mr Andrew

Mr Becker

Mr Brokenshire

Mr Caudell

Mrs Greig

Hon. G.M. Gunn

Hon. G.A. Ingerson

Mrs Kotz

Mr Leggett

Hon. W.A. Matthew

Mr Meier

Hon. J.K.G. Oswald

Mrs Rosenberg

Mr Rossi

Mr Bass (Teller)

 

 

 

                  So it was resolved in the affirmative.

                 

                                                                                                                                  ____________

 

                                                                       It being 1.00 p.m. the Chairman of Committees left the Chair.

 

12       Questions

                  Questions without notice were asked.

                 

13       Grievance debate

                  The Speaker proposed - That the House note grievances.

                  Debate ensued.

                  Question put and passed.

 

14       Suspension of Standing Orders

                  The Deputy Premier (Hon S.J. Baker), without notice, moved - That Standing Orders 107 and 240 be and remain so far suspended as to remove the requirement for a Minister to seek leave.

                  Question - That the motion be agreed to - put.

                  House divided (No. 2):

 

                                                Ayes, 30.

 

                              Hon. H. Allison

                              Mr Andrew

                              Hon. M.H. Armitage

                              Mr Ashenden

                              Mr Bass

                              Mr Becker

                              Mr Brindal

                              Mr Brokenshire

                              Mr Buckby

                              Mr Caudell

                              Mr Condous

                              Mr Cummins

                              Mr Evans

                              Mrs Greig

                              Ms Hall

                              Hon. G.A. Ingerson

                              Mr Kerin

                              Mrs Kotz

                              Mr Leggett

                              Mr Lewis

                              Hon. W.A. Matthew

                              Mr Meier

                              Hon. J.K.G. Oswald

                              Mrs Rosenberg

                              Mr Rossi

                              Mr Scalzi

                              Hon. R.B. Such

                              Mr Venning

                              Mr Wade

                              Hon. S.J. Baker (Teller)

                              Noes, 9.

 

Mr Atkinson

Hon. F.T. Blevins

Mr De Laine

Mrs Geraghty

Ms Hurley

Hon. M.D. Rann

Ms Stevens

Ms White

Mr Clarke (Teller)

 

 

 

                  So it was resolved in the affirmative.

                 

15       MFP Development (Miscellaneous) Amendment Bill

                  The Minister for Industrial Affairs (Hon. G. A. Ingerson), pursuant to notice, moved - That he have leave to introduce a Bill for an Act to amend the MFP Development Act 1992.

                  Question put and passed.

 

                  Bill presented and read a first time.

                  The Minister moved - That this Bill be now read a second time.

                  Ordered, on motion of Mr Clarke, that the debate be adjourned until Tuesday next.

 

16       Fisheries (Miscellaneous) Amendment Bill

                  The Minister for Housing, Urban Development and Local Government Relations (Hon J.KG. Oswald), pursuant to notice, moved - That he have leave to introduce a Bill for an Act to amend the Fisheries Act 1982.

                  Question put and passed.

 

                  Bill presented and read a first time.

                  The Minister moved - That this Bill be now read a second time.

                  Ordered, on motion of Mr Clarke, that the debate be adjourned until Tuesday next.

 

17        Dairy Industry (Equalisation Schemes) Amendment Bill

                  The Minister for Housing, Urban Development and Local Government Relations, pursuant to notice, moved - That he have leave to introduce a Bill for an Act to amend the Dairy Industry Act 1992.

                  Question put and passed.

 

                  Bill presented and read a first time.

                  The Minister moved - That this Bill be now read a second time.

                  Ordered, on motion of Mr Clarke, that the debate be adjourned until Tuesday next.

 

18       Adelaide Festival Centre Trust ( Membership) Amendment Bill 

                  Order of the Day read for the adjourned debate on the question - That this Bill be now read a second time.

                  Debate resumed.

                  Question put and passed.

                 

                  Bill read a second time.

                 

                                                                                      In Committee

                                                                                                Clauses Nos 1 and 2 agreed to.

                                                                                                Title agreed to.

 

                 

                                                                                                                                  ____________

 

                  The House having resumed:

                  Hon. H. Allison reported that the Committee had considered the Bill referred to it and had agreed to the same without amendment.

 

                  The Minister for Tourism (Hon. G.A. Ingerson) moved - That this Bill be now read a third time.

                  Debate ensued.

                  Question put and passed.

                 

                  Bill read a third time and passed.

 

19       Message from the Legislative Council

                  The following Message from the Legislative Council was received and read:

 

            Mining (Native Title) Amendment Bill                                                                                                         Message No. 88

                  MR SPEAKER - The Legislative Council has agreed to the Bill returned herewith, titled an Act to amend the Mining Act 1971, with the amendments indicated by the annexed Schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly.

                  Legislative Council, 9 March 1995                                                                                                             H.P.K. Dunn, PRESIDENT

 

                                                                    Schedule of the amendments made by the Legislative Council

                  No. 1.            Page 2 (clause 3) - After line 18 inert new paragraphs as follow:-


                                          (ca)             by inserting after the definition of “exempt land” in subsection (1) the following definition:

                                                                  “exploration authority” means -

                                                                  (a)     a miner’s right;

                                                                  (b)     a precious stones prospecting permit;

                                                                  (c)     a mineral claim;

                                                                  (d)     an exploration licence;

                                                                  (e)     a retention lease (but only if the mining operations to which the lease relates are limited to exploratory operations);

                                          (cb)  by striking out from subsection (1) the definitions of “mining” or “mining operations” and inserting the following definition:

                                                                  “mining” or “mining operations” means all operations carried out in the course of prospecting, exploring or mining for minerals (except fossicking) and includes -

                                                                  (a)     quarrying; and

                                                                  (b)     operations to recover minerals from the sea or a natural water supply; and

                                                                  (c)     operations under a miscellaneous purposes licence.’

                  No. 2            Page 2 (clause 3) - After line 33 insert new paragraph as follows:-

                                          ‘(ea)            by inserting after the definition of “precious stones field” in subsection (1) the following definition:

                                                                  “production tenement” means -

                                                                  (a)     a precious stones claim; or

                                                                  (b)     a mining lease; or

                                                                  (c)     a retention lease (if the mining operations to which the lease relates are not limited to exploratory operations); or

                                                                  (d)     a miscellaneous purposes licence;’

                  No. 3            Page 3 (clause 3) - After line 7 insert new paragraph as follows:-

                                          “(h)   by inserting after subsection (2) the following subsection:

                                                                  (3)     An explanatory note to a provision of this Act forms part of the provision to which it relates.”

                  No. 4            Page 4, lines 4 to 12 (clause 8) - Leave out subsection (4) and insert new subsections as follow:-

                                          “(4)   A mining registrar may refuse to register a mineral claim (other than a claim that relates solely to extractive minerals) if satisfied that -

                                                                  (a)     before the claim was pegged out, an application had been lodged for an exploration licence for an area comprising the area of the claim or portion of the area of the claim; and

                                                                  (b)     the application has not been refused.

                                          (4a) A mining registrar cannot register a mineral claim if to do so would be inconsistent with a public undertaking by the Minister to the mining industry.”

                  No. 5            Page 4 (clause 10) - After line 33 insert new subsection as follows:-

                                          “(3a)           An application for renewal of an exploration licence must be made to the Minister in the prescribed form not more than 6 months, and not less than 3 months, before the date of expiry of the licence.”

                  No. 6            Page 5, lines 19 to 22 (clause 13) - Leave out paragraph (b).

                  No. 7             Page 6, lines 25 to 28 (clause 16) - Leave out paragraph (b).

                  No. 8            Page 7, lines 33 to 35 (clause 19) - Leave out subsection (4) and insert new subsection as follows:-

                                          “(3a)           A mining registrar cannot register a precious stones claim if to do so would be inconsistent with a public undertaking by the Minister to the mining industry.”

                  No. 9            Page 8, lines 3 to 6 (clause 20) - Leave out section 50 and insert new section as follows:-

                            50. “Consent required for claims on freehold or native title land A precious stones claim cannot be validly pegged out on land that has been granted in fee simple, or is subject to native title, except with the written consent of the owner1 of the land.

                                                                                    1Owner of land is defined in section 6(1) to include a person who holds native title in the land.”

                  No. 10         Page 8, lines 36 to 38 (clause 22) - Leave out the clause.

                  No. 11          Page 9, lines 11 to 20 (clause 25) - Leave out section 58 and insert new section as follows:-

                            58. “How entry on land may be authorised  (1)  A mining operator may enter land to carry out mining operations on the land -

                                          (a)     in accordance with the terms of an agreement with the owner of the land; or

                                          (b)     in accordance with conditions laid down by determination of the appropriate court; or

                                          (c)     after giving notice of the proposed entry describing the nature of the proposed operations.

                                          (2)     However, a mining operator may not enter native title land under subsection (1)(c)  if the mining operations may affect native title in the land.

                                          Explanatory note -

                                          This section extends to native title land.  However, it should be noted that a mining operator is not entitled to carry out operations that affect native title unless authorised to do so by an agreement or determination under Part 9B (see section 63F).  Hence a mining operator who seeks to enter native title land to carry out mining operations that may affect native title should negotiate an agreement, or obtain a determination, conferring the necessary authorisation under part 9B.  Such an agreement or authorisation will not, however, be necessary if the right to carry out mining operations arises under a claim registered, or a lease or licence granted, before 1 January 1994 (see section 63W).”

                  No. 12         Page 9, lines 31 and 32 (clause 25) - Leave out “is held under a form of tenure that confers a right to exclusive possession of the land” and insert “is freehold land, land held from the Crown under a perpetual lease or an agreement to purchase, or native title land”.

                  No. 13         Page 10, line 25 (clause 26) - After “amended” insert new paragraph as follows:-

                                          ‘(a)    by inserting in subsection (6) “or substantial damage to the land” after “hardship”;’.

                  No. 14         Page 11 - After line 8 insert new clause as follows:-

                            27A. ‘Amendment of s.61 - Compensation  Section 61 of the principal Act is amended by striking out from subsection (1) “financial” and substituting “economic”.’

                  No. 15         Page 11, lines 21 to 34 and page 12, lines 1 to 8 (clause 29) - Leave out section 63F and insert new section as follows:-

                            63F. “Mining operations on native title land A prospecting authority confers no right to carry out mining operations on native title land and a mining tenement over native title land may not be granted or registered unless -

                                          (a)     the mining operator is authorised by a native title mining agreement or determination registered under Division 3 to carry out mining operations on the land under the prospecting authority or mining tenement; or

                                          (b)     a declaration is made under the law of the State or the Commonwealth to the effect that the land is not subject to native title.1

                                          1.A declaration to this effect may be made under Part 4 of the Native Title (South Australia) Act 1994  or the Native Title Act 1993  (Cwth).  The effect of the declaration is that the land ceases to be native title land.”

                  No. 16         Page 12, lines 9 to 20 (clause 29) - Leave out section 63G and insert new section as follows:-

                            63G. “Protection for applicants for mining tenements over native title land  (1)  If a person lodges an application under this Act for the grant or registration of a mining tenement over native title land, no other mining tenement may be granted over the same land for minerals of the same kind.

                                          (2)     If an application relates to land that is in part native title land, the Minister may subdivide the application and direct that it be granted insofar as it relates to land that is not native title land, and that consideration of the application insofar as it relates to native title land be deferred until a native title mining agreement or determination under this Part authorises mining operations on the land.

                                          (3)     The Minister may dismiss an application if it appears that the mining operator is not proceeding with proper diligence to obtain the necessary native title mining agreement or determination to authorise mining operations on the land.”

                  No. 17          Page 12 (clause 29) - After line 24 insert new subsection as follows:-

                                          “(2)   However, an application cannot be made if -


                                                                  (a)     the land is subject to a declaration under the law of the State or the Common-wealth to the effect that the land is subject to native title; or

                                                                  (b)     an application for native title declaration has already been made under the law of the State or the  Commonwealth, and the application has not yet been determined.”

                  No. 18         Page 12, lines 27 to 39 and page 13, lines 1 to 24 (clause 29) - Leave out sections 63I to 63K and insert new sections as follow:-

                            63I.  ‘Types of agreement authorising mining operations on native title land (1)  An agreement authorising mining operations on native title land (a “native title mining agreement”) may -

                                          (a)     authorise mining operations by a particular mining operator; or

                                          (b)     authorise mining operations of a specified class within a defined area by mining operators of a specified class who comply with the terms of the agreement.

                                          Explanatory note -

                                          If the authorisation relates to a particular mining operator it is referred to as an individual authorisation.  Such an authorisation is not necessarily limited to mining operations under a particular exploration authority or production tenement but may extend also to future exploration authorities or production tenements.  If the authorisation does extend to future exploration authorities or production tenements it is referred to as a conjunctive authorisation.  An authorisation that extends to a specified class of mining operators is referred to as an umbrella authorisation.

                                          (2)     If a native title mining agreement is negotiated between a mining operator who does not hold, or has not applied for, a production tenement for the relevant land and native title parties who are claimants to (rather than registered holders of) native title land, the agreement cannot extend to mining operations conducted on the land under a future production tenement.

                                          (3)     An umbrella authorisation can only relate to prospecting or mining for precious stones in a precious stones field over an area of 100 square kilometres or less.

                                          (4)     If the native title parties with whom a native title mining agreement conferring an umbrella authorisation is negotiated are claimants to (rather than registered holders of) native title land, the term of the agreement cannot exceed 10 years.

                                          (5)     The existence of an umbrella authorisation does not preclude a native title mining agreement between a mining operator and the relevant native title parties relating to the same land, and if an individual agreement is negotiated, the agreement regulates mining operations by a mining operator who is bound by the agreement to the exclusion of the umbrella authorisation.

                                    63IA. Negotiation of agreements  (1)  A person (the “proponent”) who seeks a native title mining agreement may negotiate the agreement with the native title parties.

                                                      Explanatory note -

                                                      The native title parties are the persons who are, at the end of the period of two months from when notice is given under section 63J, registered under the law of the State or the Commonwealth as holders of, or claimants to, native title in the land.  A person who negotiates with the registered representative of those persons will be taken to have negotiated with the native title parties.   Negotiations with other persons are not precluded but any agreement reached must be signed by the registered representative on behalf of the native title parties.

                                                      (2)     The proponent must be -

                                                                  (a)     if an agreement conferring an individual authorisation1 is sought -

                                                                               (i)     an applicant for the grant or registration of a mining tenement over native title land; or

                                                                              (ii)    a person who holds a prospecting authority and wants to explore for minerals on native title land;

                                                                  (b)     if an agreement conferring an umbrella authorisation1 is sought - the Minister or an association representing the interests of mining operators approved by regulation for the purposes of this section.

                                                                                                                                                            1.See the explanatory note to section 63I(1).

                                    63J. Notification of parties affected  (1)  The proponent initiates negotiations by giving notice under this section.

                                                      (2)     The notice must -

                                                                  (a)     identify the land on which the mining operations are proposed to be carried out; and

                                                                  (b)     describe the general nature of the mining operations that are proposed to be carried out on the land.

                                                      (3)     The notice must be given to -

                                                                  (a)     the relevant native title parties; and

                                                                  (b)     the ERD Court; and

                                                                  (c)     the Minister.

                                                      (4)     Notice is given to the relevant native title parties as follows:

                                                                  (a)     if a native title declaration establishes who are the holders of native title in the land - the notice must be given to the registered representative of the native title holders and the relevant representative Aboriginal body for the land;

                                                                  (b)     if there is no native title declaration establishing who are the holders of native title in the land - the notice must be given to all who hold or may hold native title in the land in accordance with the method prescribed by Part 5 of the Native Title (South Australia) Act 1994.

                                    63K. What happens when there are no registered native title parties with whom to negotiate

                                                      (1)      If, two months after the notice is given to all who hold or may hold native title in the land, there are no native title parties in relation to the land to which the notice relates, the proponent may apply ex parte  to the ERD Court for a summary determination.

                                                      (2)     On an application under subsection (1), the ERD Court must make a determination authorising entry to the land for the purpose of carrying out mining operations on the land, and the conduct of mining operations on the land.

                                                      (3)     The determination may be made on conditions the Court considers appropriate and specifies in the determination.

                                                      (4)     A determination under this section -

                                                                  (a)     cannot confer a conjunctive or umbrella authorisation; and

                                                                  (b)     if the proponent is an applicant for the grant or registration of a mining tenement in respect of the land - has no effect until the tenement is granted or registered.

                                                                                                            1.See the explanatory note to section 63I(1).’

                  No. 19         Page 14, lines 1 to 13 (clause 29) - Leave out subsections (2) and (3) and insert new subsections as follow:-

                                          “(2)   If the proponent states in the notice given under  this Division that the mining operations to which the notice relates are operations to which this section applies and that the proponent proposes to rely on this section, the proponent may apply ex parte  to the ERD Court for a summary determination authorising mining operations in accordance with the proposals made in the notice.

                                          (3)     On an application under subsection (2), the ERD Court may make a summary determination authorising mining operations in accordance with the proposals contained in the notice.

                                          (4)     However, if within two months after notice is given, a written objection to the proponent’s reliance on this section is given by the Minister, or a person who holds, or claims to hold, native title in the land, the Court must not make a summary determination under this section unless the Court is satisfied after giving the objectors an opportunity to be heard that the operations are in fact operations to which this section applies.

                                          (5)     If the proponent is an applicant for the grant or registration of a mining tenement in respect of the land, a determination under this section has no effect until the tenement is granted or registered.”

                  No. 20        Page 14, lines 15 to 17 (clause 29) - Leave out section (1) and insert new section as follows:-

                                          “(1)    The proponent and native title parties must negotiate in good faith and accordingly explore the possibility of reaching an agreement.”

                  No. 21         Page 14 (clause 29) - After line 27 insert new subsection as follows:-

                                          “(1a)            The basis of the payment may be fixed in the agreement or left to be decided by the ERD Court or some other nominated arbitrator.”

                  No. 22        Page 14, line 29 (clause 29) - After “operations” insert “and with rehabilitation of the land on completion of the mining operations”.

                  No. 23        Page 14, lines 31 and 32 (clause 29) - Leave out “extending the right to carry out mining operations on the native title land to the proponent” and insert “authorising mining operations on the native title land.”

                  No. 24        Page 15, lines 2 to 4 (clause 29) - Leave out paragraph (b)  and insert new paragraph as follows:-

                                          “(b)   if the Court considers it appropriate, order the registration of the agreement as originally negotiated or with amendments agreed by the parties.”

                  No. 25        Page 15 (clause 29) - After line 10 insert new subsection as follows:-

                                          “(7)    If native title parties were not represented in negotiations by the relevant representative Aboriginal body, the Court may, on application by that body, made within 3 months after the date of a native title declaration to the effect that land is subject to native  title, exempt (wholly or partially) from the application of subsection (6)(a) any person or group of persons who -

                                                                  (a)     are recognised at common law as holders of native title in the land; but

                                                                  (b)     were not among the original parties to the agreement.”

                  No. 26        Page 15, lines 24 to 30 (clause 29) - Leave out subsection (3) and insert new subsections as follow:-

                                          “(3)   If the ERD Court determines that mining operations may be conducted on native title land, the determination -

                                                                  (a)     must deal with the notices to be given or other conditions to be met before the land is entered for the purposes of mining operations; and

                                                                  (b)     may provide for payment to the native title parties based on profits or income derived from mining operations on the land or the quantity of minerals produced.

                                          (3a) If the proponent is an applicant for the grant or registration of a mining tenement in respect of the land, a determination under this section has no effect until the tenement is granted or registered.”

                  No. 27         Page 16 (clause 29) - After line 1 insert new subsection as follows:-

                                          “(5)   The relevant representative Aboriginal body is entitled to be heard in proceedings under this section.”

                  No. 28        Page 16 (clause 29) - After line 31 insert new section as follows:-

                            63PA. “Limitation on powers of Court (1)  The ERD Court cannot make a determination conferring a conjunctive authorisation1 authorising mining operations under both an exploration authority and a production tenement unless the native title parties2 are the registered holders of (rather than claimants to) native title in land, are represented in the proceedings and agree to the authorisation.

                                          (2)     The ERD Court cannot make a determination conferring an umbrella authorisation1 unless the native title parties2 are represented in the proceedings and agree to the authorisation.

                                          Explanatory note -

                                          An umbrella authorisation -

                                          °          can only relate to prospecting or mining for precious stones in a precious stones field over an area of 100 square kilometres or less; and

                                          °          if the native title parties are claimants to (rather than registered holders of) native title land, cannot authorise mining operations for a period exceeding 10 years.

                                          Section 63I(3) and (4) are to similar effect in relation to native title mining agreements.

                                                                                    1. See explanatory note to section 63I(1).

                                                                                    2. See explanatory note to section 63IA(1).”

                  No. 29        Page 17, lines 14 and 15 (clause 29) - Leave out “If the Minister considers it to be in the interests of the State to overrule a determination of the ERD Court under this Part” and insert “If, on application by a party to proceedings in which a determination was made, the Minister considers it to be in the interests of the State to overrule the determination”.

                  No. 30        Page 17, lines 19 and 20 (clause 29) - Leave out subsection (2) and insert new subsection as follows:-

                                          “(2)   However -

                                                                  (a)     the Minister cannot overrule a determination -

                                                                               (i)     if more than two months have elapsed since the date of the determination; or

                                                                              (ii)    if the Minister was a party to the proceedings in which the determination was made; and

                                                                  (b)     the substituted determination cannot create a conjunctive or umbrella authorisation1 if there was no such authorisation in the original determination nor can the substituted determination extend the scope of a conjunctive or umbrella authorisation.

                                          1. See the explanatory note to section 63I(1).”

                  No. 31         Page 17, lines 32 and 33 (clause 29) - Leave out “the ERD Court or the Minister decides to authorise mining operations on native title land under this Part on conditions requiring the payment of compensation” and insert “a determination under this Part authorises mining operations on conditions requiring payment of compensation”.

                  No. 32        Page 18 (clause 29) - After line 28 insert new section as follows:-

                            63VA. “Review of compensation  (1)  If -

                                          (a)     mining operations are authorised by determination under this Part on conditions requiring the payment of compensation; and

                                          (b)     a native title declaration is later made establishing who are the holders of native title in the land,

                                          the ERD Court may, on application by the registered representative of the holders of native title in the land, or on the application of a person who is liable to pay compensation under the determination, review the provisions of the determination providing for the payment of compensation.

                                          (2)     The application must be made within three months after the date of the native title declaration.

                                          (3)     The Court may, on an application under this section -

                                                      (a)     increase or reduce the amount of the compensation payable under the determination; and

                                                      (b)     change the provisions of the determination for payment of compensation.”

                  No. 33        Page 19 - After line 13 insert new clause as follows:-

                            32A. “Insertion of s.74A  The following section is inserted after section 74 of the principal Act:

                            74A. Compliance orders  (1)  If a person carries out mining operations without the authority required by this Act, the ERD Court may, on application by the Director or the owner of land on which the operations are carried out, make an order (a compliance order) requiring the person (the respondent) -

                                          (a)     to stop the operations; and

                                          (b)     if the operations have resulted in damage to land - to take specified action to rehabilitate the land.

                                          (2)     Before the Court makes a compliance order it must allow the respondent a reasonable opportunity to be heard on the application.

                                          (3)     A person against whom a compliance order is made must comply with the order.

                                          Maximum penalty:  $100 000.”

                  No. 34        Page 19, lines 17 to 20 (clause 33) - Leave out subsection (1) and insert new subsection as follows:-

                                          “(1)    A claim or lease cannot be validly pegged out or granted in respect of extractive minerals on land that has been granted in fee simple, or is subject to native title, except with the written consent of the owner1 of the land.

                                                                                    1.Owner of land is defined in section 6(1) to include a person who holds native title in land.”

                                                                                                                                                J.M. Davis, CLERK OF THE LEGISLATIVE COUNCIL

 

                  Ordered - That consideration of the amendments be an Order of the Day for Tuesday next.

 

20       Adjournment

                  House adjourned at 4.23  p.m. until Tuesday next at 2.00 p.m.

 

                                                                                                                                  ____________

 

                                                                                                                                                      

                  Present during the day - All Members except Hon. D.S. Baker, Mr Foley, Hon. J.W. Olsen, Mrs Penfold and Hon. D.C. Wotton.

                 

                  The following Pairs were handed in at the Table during the days proceedings:

 

                  Division No. 2 -

                              Ayes - Hon. D.C. Wotton.

                              Noes - Mr Foley.

 

                 

 

 

 

 

 

                                                                                                                                                                                                                                                G.M. Gunn

                                                                                                                                                                                                                                                SPEAKER

 

G.D. Mitchell

CLERK OF THE HOUSE OF ASSEMBLY