Native Title (Approved Exploration etc. Acts - New South Wales) (Petroleum) Determination 2000

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Native Title (Approved Exploration etc. Acts — New South Wales) (Petroleum) Determination 20001

I, DARYL ROBERT WILLIAMS, Attorney-General, acting under subsection 26A (1) of the Native Title Act 1993, determine that each act included in the class of acts mentioned in Part 2 of Schedule 1 is an approved exploration etc. act.

Dated 17 October 2000

DARYL WILLIAMS

Attorney-General

Schedule 1 Approved exploration etc. acts

Part 1 Interpretation

1. In clause 5, 6 or 9 in Part 2 of this Schedule, a reference to a low-impact exploration licence is a reference to a low-impact exploration licence:

 (a) that is subject to the condition that the holder of the licence is not authorised to carry out prospecting operations on any land in relation to which there are any registered native title bodies corporate or registered native title claimants otherwise than in accordance with an access arrangement between the holder of the licence and each registered native title body corporate or each registered native title claimant; and

 (b) in relation to which each registered native title body corporate, or each registered native title claimant, has the same rights (including procedural rights) regarding the making and enforcement of the access arrangement as that body corporate or claimant would have if the body corporate or claimant were the holder of an estate in fee simple in relation to the land concerned; and

 (c) in relation to which (in the case of the acts mentioned in clauses 5 and 9 in Part 2) notice of the application for the grant of the licence or for the variation of conditions of an exploration licence to convert it to the licence, as the case may be, was served on any representative Aboriginal/Torres Strait Islander body for the area that includes the land covered by the licence not less than 4 months before the grant or variation.

2. In clause 7, 8 or 9 in Part 2 of this Schedule, a reference to a low-impact special prospecting authority is a reference to a low-impact special prospecting authority:

 (a) that is subject to the condition that the holder of the authority is not authorised to carry out prospecting operations on any land in relation to which there are any registered native title bodies corporate or registered native title claimants otherwise than in accordance with an access arrangement between the holder of the authority and each registered native title body corporate or each registered native title claimant; and

 (b) in relation to which each registered native title body corporate, or each registered native title claimant, has the same rights (including procedural rights) regarding the making and enforcement of the access arrangement as that body corporate or claimant would have if the body corporate or claimant were the holder of an estate in fee simple in relation to the land concerned; and

 (c) in relation to which (in the case of the acts mentioned in clauses 7 and 9 in Part 2) notice of the application for the grant of the authority or for the variation of the conditions of an exploration licence to convert it to the authority, as the case may be, was served on any representative Aboriginal/Torres Strait Islander body for the area that includes the land covered by the authority not less than 4 months before the grant or variation.

3. In this Part:

 access arrangement means an access arrangement under Part 4A of the Petroleum (Onshore) Act 19912 of New South Wales that is:

 (a) agreed between the holder of the licence or authority and each registered native title body corporate or each registered native title claimant; or

 (b) determined for those parties by an arbitrator who has the power to determine whether the holder of the licence or authority is entitled to a right of access to the land concerned.

4. The following expressions used in this Part have the same meaning as in the Petroleum (Onshore) Act 1991 of New South Wales:

 (a) prospecting operations;

 (b) registered native title body corporate;

 (c) registered native title claimant;

 (d) representative Aboriginal/Torres Strait Islander body.

Part 2 Class of acts

5. The grant of a petroleum title under section 9 of the Petroleum (Onshore) Act 1991 of New South Wales that is an exploration licence to which Division 2 of Part 3 of that Act applies and that is a low-impact exploration licence under, and in accordance with, Division 6 of Part 3 of that Act.

6. The renewal of a petroleum title under section 19 of the Petroleum (Onshore) Act 1991 of New South Wales that is an exploration licence to which Division 2 of Part 3 of that Act applies and that is a low-impact exploration licence under, and in accordance with, Division 6 of Part 3 of that Act.

7. The grant of a petroleum title under section 9 of the Petroleum (Onshore) Act 1991 of New South Wales that is a special prospecting authority to which Division 4 of Part 3 of that Act applies and that is a low-impact special prospecting authority under, and in accordance with, Division 6 of Part 3 of that Act.

8. The renewal of a petroleum title under section 19 of the Petroleum (Onshore) Act 1991 of New South Wales that is a special prospecting authority to which Division 4 of Part 3 of that Act applies and that is a low-impact special prospecting authority under, and in accordance with, Division 6 of Part 3 of that Act.

9. The variation of conditions under clause 15 in Part 3 of Schedule 1 to the Petroleum (Onshore) Act 1991 of New South Wales to convert an exploration licence under Division 2 of Part 3 of that Act that was in force immediately before the commencement of Division 6 of Part 3 of that Act to a low-impact prospecting title (being either a low-impact exploration licence or a low-impact special prospecting authority) under, and in accordance with, Division 6 of Part 3 of that Act.

Notes

1. This Determination commences on gazettal: see Acts Interpretation Act 1901, section 48 and Native Title Act 1993, section 214.

2. Paragraph 10A (a) of the Acts Interpretation Act 1901 provides that a reference to the short title of a State Act is to be construed as a reference to the Act as originally enacted or made and as amended from time to time.

 

Overview

The Native Title (Approved Exploration etc. Acts — New South Wales) (Petroleum) Determination 2000 was enacted in 2001 by the Attorney-General of Australia, Daryl Williams, under the authority of the Native Title Act 1993. This legislation addresses the need to balance the exploration and development of petroleum resources with the recognition and protection of native title rights in New South Wales. The determination seeks to establish a framework for approving certain petroleum exploration and prospecting activities that are conducted in a manner that is consistent with the rights and interests of native title holders. The overarching policy objective is to facilitate exploration activities while ensuring that native title rights are respected and protected, thereby promoting harmony between economic development and the recognition of Indigenous land rights.

Scope and Application

The Native Title (Approved Exploration etc. Acts – New South Wales) (Petroleum) Determination 2000I, made under subsection 26A(1) of the Native Title Act 1993, applies to specific petroleum exploration activities in New South Wales that are regulated under the Petroleum (Onshore) Act 1991. The Determination identifies certain acts related to the grant, renewal, and variation of petroleum titles in New South Wales as approved exploration acts, provided they meet stringent conditions that ensure the protection of native title rights. These approved exploration acts include the granting and renewal of low-impact exploration licences and special prospecting authorities, as well as the variation of conditions for converting existing exploration licences into low-impact prospecting titles. The approval process mandates that these activities must be conducted in accordance with an access arrangement between the licensee or authority holder and any registered native title bodies corporate or claimants, ensuring that the latter have rights equivalent to those of a fee simple holder in relation to the land concerned. The Determination also stipulates that notice must be given to relevant Aboriginal or Torres Strait Islander representative bodies at least four months prior to the grant or variation of such licences or authorities. The jurisdictional scope of this Determination is confined to New South Wales, focusing on the intersection of native title rights and petroleum exploration activities as defined under state legislation. This Determination does not extend beyond the approved acts listed in the schedule, which are specific to low-impact petroleum exploration activities in the state. There are no stated exclusions, exemptions, or thresholds in the text provided, but it is likely that other types of exploration activities or petroleum operations not covered by the approved acts would remain subject to other regulatory frameworks. The application of this Determination can be further refined or expanded through subordinate instruments, which may provide additional details or modifications to the approved acts.

Key Provisions

The Native Title (Approved Exploration etc. Acts—New South Wales) (Petroleum) Determination 2001 (the "Determination") specifies that certain acts related to the exploration and prospecting of petroleum in New South Wales are approved exploration acts. Specifically, these acts include the grant of a low-impact exploration licence or special prospecting authority under the Petroleum (Onshore) Act 1991 of New South Wales, the renewal of such licences or authorities, and the variation of the conditions of an exploration licence to convert it to a low-impact prospecting title (subsection 26A(1) of the Native Title Act 1993). The term "low-impact exploration licence" is defined as one that restricts prospecting operations to land in accordance with an access arrangement between the licence holder and registered native title bodies corporate or claimants (clause 5). Similarly, a "low-impact special prospecting authority" is one that also requires compliance with access arrangements (clause 7). These definitions are critical for ensuring that exploration activities are conducted in a manner that respects native title rights. The Determination imposes specific obligations on entities seeking to engage in exploration activities. They must ensure that any low-impact exploration licence or special prospecting authority they hold is subject to certain conditions. These include restrictions on prospecting operations unless an access arrangement is in place with the relevant native title holders, and that such arrangements must provide the native title holders with rights equivalent to those of a fee simple holder. Additionally, any application for the grant or variation of these licences or authorities must be accompanied by the service of notice to any representative Aboriginal/Torres Strait Islander body for the area at least four months prior to the grant or variation (clauses 5 and 7). These obligations are designed to facilitate cooperative arrangements that recognise and protect native title rights. Breaching the conditions outlined in the Determination can lead to legal consequences. While the Determination itself does not specify detailed penalties, the underlying acts and related legislation provide a framework for enforcement. For example, the Petroleum (Onshore) Act 1991 and the Native Title Act 1993 include provisions for penalties for non-compliance, which can include fines and other sanctions. These acts underscore the importance of adhering to the terms of the Determination to avoid legal repercussions.

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