STATUTES AMENDMENT (CO-MANAGED PARKS) BILL 2003

Part 2—Amendment of Maralinga Tjarutja Land Rights Act 1984

(1) Section 3—after the definition of Aboriginal person insert:

co-management agreement means a co-management agreement under Division 6A of Part 3 of the National Parks and Wildlife Act 1972;

co-management board means the board established by regulation under Division 1A of Part 3 for the control and management of the Unnamed Conservation Park;

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

Unnamed Conservation Park means the land described in the fourth schedule, being a conservation park constituted under the National Parks and Wildlife Act 1972, the inalienable fee simple in which is vested in Maralinga Tjarutja;

5—Amendment of section 5—powers and functions of Maralinga Tjarutja

Section 5(2)—after paragraph (h) insert:

(i) the power to enter into a co-management agreement in relation to land to be vested in Maralinga Tjarutja.

6—Insertion of Part 3 Division 1A

After section 15 insert:

Division 1A—Co-management board for Unnamed Conservation Park

15A—Interpretation

In this Division—

Minister means the Minister to whom the administration of the National Parks and Wildlife Act 1972 is committed.

15B—Establishment of co-management board

(1) The Governor may, by regulation, establish a co-management board for the control and management of the Unnamed Conservation Park subject to the provisions of this Act and the National Parks and Wildlife Act 1972.

(2) Subject to this section, regulations establishing the co-management board—

(a) must not be inconsistent with the co-management agreement for the Unnamed Conservation Park; and

(b) must name the board; and

(d) must provide for the procedures governing the board's proceedings; and

(e) must provide that the board have a majority of members who are members of Maralinga Tjarutja; and

(f) must provide that the board be chaired by a person nominated by Maralinga Tjarutja; and

(g) must provide that the quorum of the board have a majority of members who are members of Maralinga Tjarutja; and

(h) may limit the powers and functions of the board; and

(i) may provide for delegation by the board; and

(j) may provide for the remuneration of members; and

(k) may require reporting by the board to the Minister; and

(l) may make any other provision (not inconsistent with the National Parks and Wildlife Act 1972) relating to the board or the control and management of the Unnamed Conservation Park.

(3) If a regulation establishing the co-management board is disallowed by either House of Parliament, the assets and liabilities of the board will be dealt with in accordance with the directions of the Minister.

15C—Corporate nature of co-management board

(1) The co-management board—

(a) is a body corporate; and

(b) has perpetual succession and a common seal; and

(d) has all the powers of a natural person that are capable of being exercised by a body corporate; and

(e) has the functions and powers assigned or conferred by or under this or any other Act.

(2) If a document appears to bear the common seal of the co-management board, it will be presumed, in the absence of proof to the contrary, that the common seal of the co-management board was duly fixed to the document.

15D—Dissolution or suspension of co-management board

(1) Subject to this section, the Governor may, by regulation, dissolve or suspend the co-management board.

(2) The co-management board must not be dissolved unless the Unnamed Conservation Park is abolished.

(3) The co-management board must not be suspended unless the Minister is satisfied that such action is warranted due to continuing failure by the board properly to discharge its responsibilities.

(4) On dissolution and during any suspension of the co-management board, any assets and liabilities of the board will be dealt with or disposed of in accordance with the directions of the Minister.

15E—Staff

(1) The staffing arrangements for the co-management board will be determined or approved by the Minister after consultation with Maralinga Tjarutja.

(2) Any staff under subsection (1) will be—

(a) Public Service employees assigned to work with the co-management board; or

(b) if appointments have been made under subsection (3)—the persons holding those appointments.

(3) The co-management board may, with the approval of the Minister—

(a) appoint persons to the staff of the board; and

(b) appoint persons to assist in the management of the Unnamed Conservation Park.

(4) The co-management board may, with the approval of the Minister administering an administrative unit of the Public Service, on terms and conditions mutually arranged, make use of the services of any officer, or use any facilities or equipment, of that unit.

(5) A person employed under subsection (3) is not a Public Service employee.

15F—Accounts and audit

(1) The co-management board must cause proper accounts to be kept of its financial affairs.

(2) The Auditor-General may at any time, and must in respect of each financial year, audit the accounts of the co-management board.

15G—Annual report

(1) The co-management board must, on or before 30 September in each year, prepare and deliver to the Minister a report on its operations during the preceding financial year.

(2) The report must include—

(a) the audited accounts of the co-management board; and

(b) any other information required by or under the regulations.

(3) The Minister must, within 6 sitting days after receiving a report, cause copies of the report to be laid before both houses of Parliament.

7—Amendment of section 17—Rights of traditional owners with respect to lands

Section 17—after its present contents (now to be designated as subsection (1)) insert:

(2) Subsection (1) applies to the Unnamed Conservation Park subject to the provisions of the National Parks and Wildlife Act 1972.

8—Amendment of section 18—Unauthorized entry upon the lands

Section 18(11)—after paragraph (g) insert:

(ga) entry upon the road reserve described in the third schedule and the Unnamed Conservation Park;

9—Insertion of section 20A

Before section 21 insert:

20A—Application of Division

This Division does not apply to the Unnamed Conservation Park.

10—Amendment of section 30—Road reserves

Section 30(3)—delete "conservation park described in the fourth schedule to this Act" and substitute:

Unnamed Conservation Park

11—Amendment of the first schedule

The first schedule—before "Section 1302" insert:

Section 50, Out of Hundreds;

12—Amendment of the second schedule

The second schedule—delete the map and substitute:

Part 3—Amendment of National Parks and Wildlife Act 1972

13—Amendment of section 5—Interpretation

(1) Section 5—before definition of aircraft insert:

Aboriginal means of, or pertaining to, the people who inhabited Australia before European colonisation or their descendants;

Aboriginal-owned land means land the fee simple in which is vested in—

(a) the Aboriginal Lands Trust; or

(b) a body that represents the interests of the relevant Aboriginal group;

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

(2) Section 5—after the definition of the Chief Executive insert:

co-managed park means a national park or conservation park in relation to which a co-management agreement is in force under Part 3;

co-management agreement means a co-management agreement under Division 6A of Part 3;

co-management board for a co-managed park means a board established under Division 6A of Part 3, or under any other Act, to manage the co-managed park;

(3) Section 5—after the definition of recreation park insert:

relevant Aboriginal group, in relation to particular land, means an Aboriginal group or community with a traditional association with that land;

(4) Section 5—after the definition of to hunt insert:

traditional association, in relation to particular land, means an association with that land consisting of social, economic or spiritual affiliations with, and responsibilities for, the land in accordance with Aboriginal tradition;

14—Amendment of section 20—Appointment of wardens

(1) Section 20(1)—delete "The" and substitute:

Subject to subsection (7), the

(2) Sections 20(3) and (4)—delete subsections (3) and (4) and substitute:

(3) An appointment under subsection (1) may be subject to conditions or limitations specified in the instrument of appointment that govern the exercise of the appointee's powers as a warden.

(3) Section 20—after subsection (6) insert:

(7) The Minister may not appoint a warden with powers limited in application to a co-managed park except—

(a) if there is a co-management board for the park—with the agreement of the co-management board; or

(b) in any other case—after consultation with the other party to the co-management agreement for the park.

15—Amendment of section 22—Powers of wardens

Section 22—after subsection (7) insert:

(8) A warden must not exercise a power under this Act in relation to a co-managed park contrary to any provision relating to the exercise of the power contained in the co-management agreement for the reserve.

16—Amendment of section 27—Constitution of national park by statute

Section 27—after subsection (5) insert:

(6) A proclamation must not be made under subsection (3)(b) or (c) in relation to a national park constituted of Aboriginal-owned land except with the agreement of the registered proprietor of the land.

17—Amendment of section 28—Constitution of national parks by proclamation

(1) Section 28(1)(a)—after "Crown land" insert:

, or specified Aboriginal-owned land,

(2) Section 28(1)—after subsection (1) insert:

(1a) A proclamation must not be made under subsection (1)—

(a) constituting a national park of Aboriginal-owned land unless a co-management agreement has been made for the park; or

(b) assigning a name to such a park unless the name has been nominated by the registered proprietor of the land.

(3) Section 28—after subsection (4) insert:

(5) A proclamation must not be made under subsection (2)(b) or (c) in relation to a national park constituted of Aboriginal-owned land except with the agreement of the registered proprietor of the land.

18—Insertion of section 28A

After section 28 insert:

28A—Certain co-managed national parks cease on termination of co-management agreement

(1) This section applies to a co-managed national park comprised of Aboriginal-owned land that was Aboriginal-owned land before it was constituted a national park.

(2) If the co-management agreement for a national park to which this section applies is terminated—

(a) the land ceases to be a national park; and

(b) the Minister must cause notice of that fact to be published in the Gazette.

19—Amendment of section 29—Constitution of conservation park by statute

Section 29—after subsection (5) insert:

(6) A proclamation must not be made under subsection (3)(b) or (c) in relation to a conservation park constituted of Aboriginal-owned land except with the agreement of the registered proprietor of the land.

20—Amendment of section 30—Constitution of conservation parks by proclamation

(1) Section 30(1)(a)—after "Crown land" insert:

, or specified Aboriginal-owned land,

(2) Section 30(1)—after subsection (1) insert:

(1a) A proclamation must not be made under subsection (1)—

(a) constituting a conservation park of Aboriginal-owned land unless a co-management agreement has been made for the park; or

(b) assigning a name to such a park unless the name has been nominated by the registered proprietor of the land.

(3) Section 30—after subsection (4) insert:

(5) A proclamation must not be made under subsection (2)(b) or (c) in relation to a conservation park constituted of Aboriginal-owned land except with the agreement of the registered proprietor of the land.

21—Insertion of section 30A

After section 30 insert:

30A—Certain co-managed conservation parks cease on termination of co-management agreement

(1) This section applies to a co-managed conservation park comprised of Aboriginal-owned land that was Aboriginal-owned land before it was constituted a conservation park.

(2) If the co-management agreement for a conservation park to which this section applies is terminated—

(a) the land ceases to be a conservation park; and

(b) the Minister must cause notice of that fact to be published in the Gazette.

22—Amendment of section 35—Control of reserves

(1) Section 35(1)—delete "control and administration of all reserves" and substitute:

control of all reserves, other than co-managed parks,

(2) Section 35(2)—delete subsection (2) and substitute:

(2) All reserves, other than national parks or conservation parks constituted of Aboriginal-owned land, are vested in the Crown.

(3) Section 35(2)—after subsection (2) insert:

(2a) A co-managed park is—

(a) if there is a co-management board for the park—under the control of the board, subject to Division 6A; or

(b) in any other case—under the control of the Minister, subject to the provisions of the co-management agreement for the park.

(4) Section 35(3)—delete "Minister" and substitute:

relevant authority

(5) Section 35(4)—delete "Minister or the Director" and substitute:

relevant authority

(6) Section 35(5)—delete "Minister or Director" and substitute:

relevant authority

(7) Section 35(6)—delete "Minister or the Director" and substitute:

relevant authority

(8) Section 35—after subsection (6) insert:

(7) The powers of the Minister under subsections (3), (4), (5) or (6) apply in relation to a co-managed park for which there is not a co-management board subject to the provisions of the co-management agreement for the park.

(8) In this section—

relevant authority means—

(a) in relation to a co-managed park for which there is a co-management board—the co-management board for the park; or

(b) in any other case—the Minister.

23—Substitution of section 36

Section 36—delete the section and substitute:

36—Management of reserves

(1) Subject to this section, and to Part 3A, all reserves, other than co-managed parks, are under the management of the Director.

(2) A co-managed park is—

(a) if there is a co-management board for the park—under the management of the board, subject to Division 6A and the provisions of the co-management agreement; or

(b) in any other case—under the management of the Director, subject to the provisions of the co-management agreement for the park.

(3) The Director must observe any direction of the Minister or the Chief Executive relating to the management of reserves generally or any particular reserve (provided that, in the case of a co-managed park, the direction is consistent with the provisions of the co-management agreement for the park).

(4) If there is a co-management board for the park, the board must comply with any provisions of the co-management agreement relating to the management of the park.

24—Amendment of section 37—Objectives of management

(1) Section 37—delete "and the Director" and substitute:

, the Director or a co-management board

(2) Section 37—after paragraph (j) insert:

and

(k) the preservation and protection of Aboriginal sites, features, objects and structures of spiritual or cultural significance within reserves.

25—Amendment of section 38—Management plans

(1) Section 38(1)—after "reserve," insert:

or the making of a co-management agreement for a co-managed park,

(2) Section 38(2)—after "previous plan" insert:

(and in a subsequent provision of this section, a reference to a plan of management includes a reference to such an amendment or plan to be substituted)

(3) Section 38(2a)—delete subsection (2a) and substitute:

(2a) A plan of management must be prepared—

(a) after consultation with the Development Policy Advisory Committee under the Development Act 1993; and

(b) having regard to—

(i) the principles and policies of the Planning Strategy under the Development Act 1993; and

(ii) the provisions of any relevant Development Plan under that Act; and

(i) for which there is a co-management board—in collaboration with the board; or

(ii) in any case—after consultation with the other party to the co-management agreement for the park.

(4) Section 38(3)—delete "(whether the plan is the original plan of management or in substitution for a previous plan of management) or any amendment to a plan of management"

(5) Section 38(3)—delete ", or the amendment,"

(6) Section 38—after subsection (4) insert:

(4a) The plan of management in respect of a co-managed park must deal with such matters and include such material as is required by regulation.

(7) Section 38—after subsection (9) insert:

(9a) The Minister may not exercise a power of the Minister under subsection (9) in relation to a proposed plan of management for a co-managed park except—

(a) if there is a co-management board for the park—with the agreement of the board; or

(b) in any other case—after consultation with the other party to the co-management agreement for the park.

26—Amendment of section 42—Prohibited areas

(1) Section 42—after subsection (1) insert:

(1a) Except in an emergency, the Minister may only make a declaration under subsection (1) in relation to a co-managed park—

(a) if there is a co-management board for the park—with the agreement of the board; or

(b) in any other case—after consultation with the other party to the co-management agreement for the park.

(2) Section 42—after subsection (4) insert:

(5) The Minister may, at the request of the co-management board for a co-managed park, exempt members of the relevant Aboriginal group from the restriction applying to a prohibited area within the co-managed park under this section.

27—Amendment of section 43—Rights of prospecting and mining

Section 43—after subsection (6) insert:

(7) A proclamation must not be made under this section in relation to a co-managed park constituted of Aboriginal-owned land except with the agreement of the registered proprietor of the land.

28—Amendment of section 43C—Entrance fees etc for reserves

(1) Section 43C(1)—delete "Director" and substitute:

relevant authority

(2) Section 43C(2)—delete "Director" and substitute:

relevant authority

(3) Section 43C—after subsection (2) insert:

(3) In this section—

relevant authority means—

(a) in relation to a co-managed park for which there is a co-management board—the co-management board for the park; or

(b) in any other case—the Director.

29—Insertion of Part 3 Division 6A

After section 43C insert:

Division 6A—Provisions relating to co-managed parks

Subdivision 1—Preliminary

43D—Application

This Division applies to a national park or conservation park, or proposed national park or conservation park, that is or is to be constituted of Aboriginal-owned land or land with which an Aboriginal group or community has a traditional association.

43E—Objects

(1) The principal object of this Division is to provide for effective co-management of parks to which this Division applies by representatives of the relevant Aboriginal groups and the Minister, and, as far as practicable, to—

(a) ensure the continued enjoyment of the parks by the relevant Aboriginal groups for cultural, spiritual and traditional uses; and

(b) ensure the continued enjoyment of the parks by members of the public in a manner consistent with the co-management agreements for the parks; and

(c) ensure the preservation and protection of Aboriginal sites, features, objects and structures of spiritual or cultural significance within the parks; and

(d) provide protection for the natural resources, wildlife, vegetation and other features of the parks.

(2) The Minister must, in administering this Division, have regard to, and seek to further, the objects.

Subdivision 2—Co-management agreements

43F—Co-management agreement

(1) The Minister may enter into a co-management agreement for—

(a) a national park or conservation park to be constituted of Aboriginal-owned land; or

(b) a national park or conservation park constituted of land with which an Aboriginal group or community has a traditional association.

(2) The parties to a co-management agreement will consist of or include the Minister and—

(a) in the case of a national park or conservation park to be constituted of Aboriginal-owned land—the registered proprietor of the land, or the body in which the land is to be vested; or

(b) in the case of a national park or conservation park constituted of Crown land—a body representing the interests of the relevant Aboriginal group.

(3) A co-management agreement under this section may provide for—

(a) if a co-management board is to be established for the co-managed park—the constitution of the board; and

(b) if a co-management board is not to be established for the co-managed park—any limitations or conditions applying to the exercise of the Minister's or Director's powers in relation to the park and responsibilities to be assumed by or on behalf of the relevant Aboriginal group; and

(d) measures related to the preservation and protection of Aboriginal sites, features, objects and structures of spiritual or cultural significance; and

(e) implementation of the plan of management for the co-managed park; and

(f) funding arrangements relating to the management of the co-managed park; and

(g) the appointment of wardens; and

(h) the exercising of powers by wardens in relation to members of the relevant Aboriginal group; and

(i) employment of staff; and

(j) dispute resolution; and

(k) park entrance fees; and

(l) access by members of the public to the co-managed park; and

(m) the taking of plants and animals by members of the relevant Aboriginal group; and

(n) any other matter specified by the Minister.

(4) A co-management agreement may be varied in accordance with processes set out in the agreement.

(5) The following provisions apply to the termination of a co-management agreement:

(a) in the case of a co-management agreement for a national park or conservation park constituted of Aboriginal-owned land that was Aboriginal-owned land before the park was constituted—

(i) the agreement may be terminated unilaterally;

(ii) the agreement may specify a minimum period that must elapse before the agreement may be terminated;

(b) in the case of a co-management agreement for a national park or conservation park constituted of Aboriginal-owned land that was Crown land before the co-management agreement was made—

(i) the agreement may only be terminated by agreement between the Minister and registered proprietor of the Aboriginal-owned land;

(ii) the agreement may specify a minimum period that must elapse before the agreement may be terminated;

(c) in the case of a co-management agreement for a national park or conservation park constituted of Crown land—the agreement may only be terminated by the Minister by notice in writing to the other party to the agreement.

(6) If a co-management agreement is entered into or terminated under this section, the Minister must cause notice of that fact to be published in the Gazette.

(7) The Minister must, on the application of a member of the public and payment of the prescribed fee, furnish the person with a copy of a co-management agreement under this section.

Subdivision 3—Co-management Boards

43G—Establishment of co-management boards by regulation

(1) The Governor may, by regulation, establish a co-management board for a co-managed park.

(2) Subject to this section, regulations establishing a co-management board—

(a) must not be inconsistent with the co-management agreement for the co-managed park; and

(b) must name the board; and

(d) must provide for the procedures governing the board's proceedings; and

(e) may limit the powers and functions of the board; and

(f) may provide for delegation by the board; and

(g) may provide for the remuneration of members; and

(h) may require reporting by the board to the Minister; and

(i) may make any other provision (not inconsistent with this Act) that is necessary or expedient for the purposes of this Act.

(3) The regulations establishing a co-management board for a co-managed park constituted of Aboriginal-owned land must (in addition to providing for the matters required under subsection (2)) provide for—

(a) the co-management board to have a majority of members who are members of the relevant Aboriginal group; and

(b) the co-management board to be chaired by a person nominated by the registered proprietor of the land constituting the co-managed park; and

(c) the quorum of the co-management board to have a majority of members who are members of the relevant Aboriginal group.

(4) If a regulation establishing a co-management board is disallowed by either House of Parliament, the assets and liabilities of the board will be dealt with in accordance with the directions of the Minister.

43H—Corporate nature of co-management board

(1) A co-management board established under this Division—

(a) is a body corporate; and

(b) has perpetual succession and a common seal; and

(d) has all the powers of a natural person that are capable of being exercised by a body corporate; and

(e) has the functions and powers assigned or conferred by or under this or any other Act.

43I—Dissolution or suspension of co-management boards

(1) Subject to this section, the Governor may, by regulation, dissolve or suspend a co-management board established under this Division.

(2) The co-management board for a co-managed park must not be dissolved under this section unless—

(a) the co-managed park is abolished; or

(b) the co-management agreement for the co-managed park is terminated.

(3) The co-management board for a co-managed park must not be suspended under this section unless the Minister is satisfied that such action is warranted due to continuing failure by the board properly to discharge its responsibilities.

(4) On dissolution and during any suspension of a co-management board under this section, any assets and liabilities of the board will be dealt with or disposed of in accordance with the directions of the Minister.

Subdivision 4—Miscellaneous

43J—Staff

(1) The staffing arrangements for a co-management board established under this Division will be determined or approved by the Minister after consultation with the relevant Aboriginal group.

(2) Any staff under subsection (1) will be—

(a) Public Service employees assigned to work with the co-management board; or

(b) if appointments have been made under subsection (3)—the persons holding those appointments.

(3) A co-management board established under this Division may, with the approval of the Minister—

(a) appoint persons to the staff of the board; and

(b) appoint persons to assist in the management of a co-managed park.

(4) A co-management board established under this Division may, with the approval of the Minister administering an administrative unit of the Public Service, on terms and conditions mutually arranged, make use of the services of any officer, or use any facilities or equipment, of that unit.

(5) A person employed under subsection (3) is not a Public Service employee.

43K—Accounts and audit

(1) A co-management board established under this Division must cause proper accounts to be kept of its financial affairs.

(2) The Auditor-General may at any time, and must in respect of each financial year, audit the accounts of the co-management board.

43L—Annual report

(1) A co-management board established under this Division must, on or before 30 September in each year, prepare and deliver to the Minister a report on its operations during the preceding financial year.

(2) The report must include—

(a) the audited accounts of the co-management board; and

(b) any other information required by or under the regulations.

(3) The Minister must, within 6 sitting days after receiving a report, cause copies of the report to be laid before both houses of Parliament.

30—Amendment of section 45A—Interpretation and application

Section 45A—after its present contents (now to be designated as subsection (1)) insert:

(2) This Part does not apply to a co-managed park constituted of Aboriginal-owned land.

31—Amendment of section 68C—Interpretation

Section 68C(1)—delete subsection (1)

32—Amendment of section 68D—Hunting and food gathering by Aborigines

(1) Section 68D—delete "Aborigine" wherever occurring and substitute, in each case:

Aboriginal person

(2) Section 68D(3)—after "from a reserve" insert:

(other than a co-managed park)

(3) Section 68D(4)—after "from a reserve" insert:

(other than a co-managed park)

(4) Section 68D—after subsection (5) insert:

(5a) It is not illegal by virtue of section 47(1) or 51 for an Aboriginal person who is a member of the relevant Aboriginal group to take a native plant, protected animal or the eggs of a protected animal in pursuance of this Division from a co-managed park if the native plant, protected animal or eggs are taken—

(a) if there is a co-management board for the park—in accordance with a permission granted by the board (which may be general or specific and conditional or unconditional); or

(b) in accordance with the provisions of the co-management agreement for the park.

33—Amendment of section 68E—Exemption from requirement to hold hunting permit

Section 68E—delete "Aborigine" and substitute:

Aboriginal person

34—Amendment of section 79—Wilful damage to reserve or property of Minister or relevant board

(1) Section 79(1)—after "Minister" insert:

or a co-management board

(2) Section 79(2)—after "Minister" insert:

or a co-management board

35—Amendment of schedule 3

Schedule 3—delete Unnamed Conservation Park and substitute:

Unnamed Conservation Park North out of Hundreds, Section 50

South Australian Bills

STATUTES AMENDMENT (CO-MANAGED PARKS) BILL 2003