NATURAL RESOURCES MANAGEMENT BILL 2004

Contents

Chapter 1—Preliminary

1 Short title

2 Commencement

3 Interpretation

4 Interaction with other Acts

5 Territorial and extra-territorial operation of Act

6 Act binds Crown

Chapter 2—Objects of Act and general statutory duties

Part 1—Objects

7 Objects

8 Administration of Act to achieve objects

Part 2—General statutory duties

9 General statutory duties

Chapter 3—Administration

Part 1—The Minister

10 Functions of Minister

11 General powers

12 Powers of delegation

Part 2—The NRM Council

Division 1—Establishment of NRM Council

13 Establishment of NRM Council

Division 2—The Council's membership

14 Composition of NRM Council

15 Conditions of membership

16 Allowances and expenses

17 Validity of acts

Division 3—Functions of NRM Council

18 Functions of NRM Council

19 Committees

20 Power of delegation

Division 4—Related matters

21 Annual report

22 Use of facilities

Part 3—NRM regions and boards

Division 1—Establishment of regions

23 Establishment of regions

Division 2—Establishment of regional NRM boards

24 Establishment of boards

25 Corporate nature

Division 3—Membership

26 Composition of boards

27 Conditions of membership

28 Allowances and expenses

29 Validity of acts

Division 4—Functions of boards

30 Functions of boards

Division 5—Powers of boards

31 General powers

32 Power to acquire land

33 Special powers to carry out works

34 Entry and occupation of land

35 Special vesting of infrastructure

Division 6—Staff

36 Staff

Division 7—Committees and delegations

37 Committees

38 Power of delegation

Division 8—Accounts, audit and reports

39 Accounts and audit

40 Annual reports

41 Specific reports

Division 9—Appointment of administrator

42 Appointment of administrator

Division 10—Related matters

43 Use of facilities

44 Board's power to provide financial assistance etc

45 Assignment of responsibility for infrastructure to another person or body

46 Appointment of body to act as a board

Part 4—NRM groups

Division 1—Establishment of areas

47 Establishment of areas

Division 2—Establishment of NRM groups

48 Establishment of groups

49 Corporate nature and responsibility at regional level

Division 3—Membership

50 Composition of NRM groups

51 Conditions of membership

52 Allowances and expenses

53 Validity of acts

Division 4—Functions of NRM groups

54 Functions of groups

Division 5—Powers of NRM groups

55 General powers

Division 6—Committees and delegations

56 Committees

57 Power of delegation

Division 7—Accounts, audit and reports

58 Accounts and audit

59 Annual reports

60 Specific reports

Division 8—Related matters

61 Staff

62 Use of facilities

63 Appointment of body to act as group

64 Regional NRM board may act as an NRM group

Part 5—The Chief Officer

65 Chief Officer

66 Functions of Chief Officer

67 Power of delegation

Part 6—Authorised officers

68 State authorised officers

69 Regional authorised officers

70 Identity cards

71 Powers of authorised officers

72 Provisions relating to seizure

73 Hindering etc persons engaged in the administration of this Act

74 Self-incrimination

75 Offences by authorised officers

Chapter 4—NRM plans

Part 1—State NRM Plan

76 State NRM Plan

Part 2—Regional plans

Division 1—Regional NRM plans

77 Regional NRM plans

Division 2—Water allocation plans

78 Preparation of water allocation plans

Division 3—Preparation and maintenance of plans

79 Application of Division

80 Concept statement

81 Preparation of plans and consultation

82 Submission of plan to Minister

83 Review and amendment of plans

84 Time for implementation of plans

85 Availability of copies of plans etc

Division 4—Related matters

87 Application of Division

88 Validity of plans

89 Promotion of River Murray legislation

90 Associated Ministerial consents

91 Amendment of plans without formal procedures

92 Plans may confer discretionary powers

93 Effect of declaration of invalidity

Chapter 5—Financial provisions

Part 1—NRM levies

Division 1—Levies in respect of land

94 Contributions by constituent councils

95 Payment of contributions by councils

96 Funds may be expended in subsequent years

97 Imposition of levy by councils

98 Costs of councils

99 Outside council areas

100 Contributions towards work of NRM groups

101 Application of levy

Division 2—Levies in respect of water

102 Interpretation

103 Declaration of levies

104 Provisions applying to water (holding) allocations in declared water resources

105 Special purpose water levy

106 Liability for levy

107 Notice of liability for levy

108 Determination of quantity of water taken

109 Cancellation etc of licence or permit for non-payment of levy

110 Costs associated with collection

Division 3—Special provisions

111 Application of Division

112 Interest

113 Discounting levies

114 Levy first charge on land

115 Sale of land for non-payment of a levy

Division 4—Related matters

116 Refund of levies

117 Declaration of penalty in relation to the unauthorised or unlawful taking or use of water

118 Appropriation of levies, penalties and interest

Part 2—Statutory funds

Division 1—The Natural Resources Management Fund

119 The Natural Resources Management Fund

120 Accounts

121 Audit

Division 2—Regional NRM board funds

122 Regional NRM board funds

Chapter 6—Management and protection of land

123 Interpretation

124 Special provisions relating to land

125 Requirement to implement action plan

Chapter 7—Management and protection of water resources

Part 1—General rights in relation to water

126 Right to take water subject to certain requirements

127 Declaration of prescribed water resources

Part 2—Control of activities affecting water

Division 1—Determination of relevant authority

128 Determination of relevant authority

Division 2—Control of activities

129 Water affecting activities

130 Certain uses of water authorised

131 Activities not requiring a permit

132 Notice to rectify unauthorised activity

133 Notice to maintain watercourse or lake

134 Restrictions in case of inadequate supply or overuse of water

135 Specific duty with respect to damage to a watercourse or lake

136 Minister may direct removal of dam etc

Division 3—Permits

137 Permits

138 Requirement for notice of certain applications

139 Refusal of permit to drill well

140 Availability of copies of permits etc

Division 4—Provisions relating to wells

141 Well drillers' licences

142 The Water Well Drilling Committee

143 Renewal of licence

144 Non-application of certain provisions

145 Defences

146 Obligation to maintain well

147 Requirement for remedial or other work

Part 3—Licensing and allocation of water

Division 1—Licensing

148 Licences

149 Variation of water licences

150 Surrender of licence

151 Availability of copies of licences etc

Division 2—Allocation of water

152 Method of fixing water (taking) allocations

153 Allocation of water

154 Basis of decisions as to allocation

155 Water (holding) allocations

156 Conversion of water (taking) licence

157 Allocation on declaration of prescribed water resource

158 Reduction of water allocations

Division 3—Transfer of licences and water allocations

159 Transfer

160 Application for transfer of licence or allocation

161 Requirement for notice of application for certain transfers

162 Basis of decision as to transfer

163 Endorsement and record of dealings

Division 4—Breach of licence

164 Consequences of breach of licence etc

165 Effect of cancellation of licence on water allocation

Division 5—Schemes to promote the transfer or surrender of allocations

166 Schemes to promote the transfer or surrender of allocations

Part 4—Reservation of excess water by Minister

167 Interpretation

168 Reservation of excess water in a water resource

169 Allocation of reserved water

170 Public notice of allocation of reserved water

Part 5—Water conservation measures

171 Water conservation measures

Part 6—Related matters

172 Law governing decisions under this Chapter

173 Effect of water use on ecosystems

174 By-laws

175 Representations by SA Water

176 Water recovery and other rights subject to board's functions and powers

Chapter 8—Control of animals and plants

Part 1—Preliminary

177 Preliminary

Part 2—Control provisions

Division 1—Specific controls

178 Movement of animals or plants

179 Possession of animals or plants

180 Sale of animals or plants, or produce or goods carrying plants

181 Sale of contaminated items

182 Offence to release animals or plants

183 Notification of presence of animals or plants

184 Requirement to control certain animals or plants

185 Owner of land to take action to destroy or control animals or plants

186 Requirement to implement action plan

187 Native animals

188 NRM authorities may recover certain costs from owners of land adjoining road reserves

189 Destruction or control of animals outside the dog fence by poison and traps

190 Ability of Minister to control or quarantine any animal or plant

Division 2—Permits

191 Permits

Division 3—Related matters

192 Animal-proof fences

193 Offence to damage certain fences

194 Offence to leave gates open

195 Protection of certain vegetation and habitats

Chapter 9—Civil remedies

Part 1—Orders issued by NRM authorities

Division 1—Orders

196 Protection orders

197 Action on non-compliance with a protection order

198 Reparation orders

199 Action on non-compliance with a reparation order

200 Reparation authorisations

201 Related matter

Division 2—Registration of orders and effect of charges

202 Registration

203 Effect of charge

Part 2—Orders made by ERD Court

204 Orders made by ERD Court

Chapter 10—Appeals

205 Right of appeal

206 Operation and implementation of decisions or orders subject to appeal

207 Powers of Court on determination of appeals

Chapter 11—Management agreements

208 Management agreements

Chapter 12—Miscellaneous

Part 1—Avoidance of duplication of procedures etc

209 Avoidance of duplication of procedures etc

Part 2—Other matters

210 Native title

211 Service of notices or other documents

212 Money due to Minister

213 Compulsory acquisition of land

214 Compensation

215 Immunity from liability

216 Vicarious liability

217 False or misleading information

218 Interference with works or other property

219 Criminal jurisdiction of Court

220 Proceedings for offences

221 General defence

222 Offences by bodies corporate

223 Additional orders on conviction

224 Continuing offence

225 Constitution of Environment, Resources and Development Court

226 Evidentiary

227 Determination of costs and expenses

228 Minister may apply assumptions and other information

229 NRM Register

230 Confidentiality

231 Annual report

232 Damage caused by non-compliance with a notice etc

233 Recovery of technical costs associated with contraventions

234 Incorporation of codes and standards

235 Exemption from Act

236 Regulations

237 Review of Act by Minister

Schedule 1—Provisions relating to NRM Council, regional NRM boards and NRM groups

Schedule 2—Classes of wells in relation to which a permit is not required

Schedule 3—Regulations

Schedule 4—Related amendments, repeals and transitional provisions

The Parliament of South Australia enacts as follows:

Chapter 1—Preliminary

1—Short title

This Act may be cited as the Natural Resources Management Act 2004.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Interpretation

(1) In this Act, unless the contrary intention appears—

animal means a live vertebrate or invertebrate animal and includes the eggs or semen of such an animal, but does not include any animal of a class excluded from the ambit of this definition by the regulations;

animal-proof fence means a fence that complies with the prescribed requirements for an animal-proof fence;

annual value means annual value as defined in the Valuation of Land Act 1971;

approved account means an account designated by the Minister as an approved account for the purposes of this Act, or a specified provision of this Act;

authorised officer means a person appointed to be a State authorised officer or a regional authorised officer underChapter 3 Part 6;

biological diversity means the variety of life forms represented by plants, animals and other organisms and micro-organisms, the genes that they contain, and the ecosystems and ecosystem processes of which they form a part;

business day means any day except—

(a) a Saturday, Sunday or public holiday; or

(b) a day which falls between 25 December and 1 January in the following year;

capital value means capital value as defined in the Valuation of Land Act 1971;

channel includes—

(a) a drain, gutter or pipe;

(b) part of a channel;

Chief Officer means the Chief Officer under Chapter 3 Part 5 (and includes a person acting in that office from time to time);

constituent council means—

(a) in relation to a regional NRM board, or the region of a regional NRM board, a council whose area, or part of whose area, comprises or is included in the region of the regional NRM board;

(b) in relation to an NRM group, or the area of an NRM group, a council whose area, or part of whose area, comprises or is included in the area of the NRM group;

construct includes erect, alter, repair or excavate;

control means—

(a) in relation to a particular class of animals, any of the following:

(i) destroy the animals and their warrens, burrows, nests or harbours (whether occupied or not);

(ii) reduce the extent to which land is inhabited or subject to infestation by the animals;

(iii) undertake any other prescribed action,

as far as is reasonably achievable;

(b) in relation to a particular class of plants, any of the following:

(i) destroy the plants;

(ii) reduce and inhibit the propagation of the plants;

(iii) prevent the spread of the plants;

(iv) undertake any other prescribed action,

as far as is reasonably achievable;

council means a council within the meaning of the Local Government Act 1999;

council subsidiary means a subsidiary established under Schedule 2 of the Local Government Act 1999;

CPI means the Consumer Price Index (All groups index for Adelaide);

Department means the department of the Minister to whom the administration of this Act has been committed prescribed by the regulations for the purposes of this definition;

dingo includes an animal that is a cross of a dingo;

dog fence means the fence established under the Dog Fence Act 1946;

domestic activity means an activity undertaken for a domestic purpose;

domestic purpose in relation to the taking of water does not include—

(a) taking water for the purpose of watering or irrigating more than 0.4 of a hectare of land; or

(b) taking water to be used in carrying on a business (except for the personal use of persons employed in the business);

domestic wastewater means—

(a) water used in the disposal of human waste; and

(b) water used for personal washing; and

(d) water used in a swimming pool;

to drill in relation to a well means to drill the well or to excavate the well in any other manner and includes to deepen or widen an existing well;

ecosystem means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit;

effluent means domestic wastewater or industrial wastewater;

ERD Court means the Environment, Resources and Development Court established under the Environment, Resources and Development Court Act 1993;

estuary means a partially enclosed coastal body of water that is permanently, periodically, intermittently or occasionally open to the sea within which there is a measurable variation in salinity due to the mixture of seawater with water derived from or under the land;

floodplain means any area of land adjacent to a watercourse, lake or estuary that is periodically, intermittently or occasionally inundated with water and includes any other area designated as a floodplain—

(a) by the regulations; or

(b) by an NRM plan; or

general rate means a general rate under section 152 of the Local Government Act 1999;

general statutory duty means the duty under Chapter 2 Part 2;

industrial wastewater means water (not being domestic wastewater) that has been used in the course of carrying on a business (including water used in the watering or irrigation of plants) that has been allowed to run to waste or has been disposed of or has been collected for disposal;

infrastructure includes—

(a) artificial lakes;

(b) dams or reservoirs;

(d) bridges and culverts;

(e) buildings or structures;

(f) roads;

(g) pipes, machinery or other plant or equipment;

(h) any device;

(i) any item or thing used in connection with—

(i) testing, monitoring, protecting, enhancing or re-establishing any natural resource, or any aspect of a natural resource;

(ii) any other program or initiative associated with the management of a natural resource;

(j) other items brought within the ambit of this definition by the regulations;

intensive farming means a method of keeping animals in the course of carrying on the business of primary production in which the animals are usually confined to a small space or area and usually fed by hand or by a mechanical means;

Interstate Water Entitlements Transfer Scheme means a scheme for the transfer of water entitlements between States under the Agreement approved under the Murray-Darling Basin Act 1993;

keep in captivity—an animal is kept in captivity if it is held in a building or enclosure with security measures designed to ensure that the animal cannot escape (other than in circumstances that cannot be reasonably foreseen and guarded against);

lake means a natural lake, pond, lagoon, wetland or spring (whether modified or not) and includes—

(a) part of a lake; or

(b) a body of water designated as a lake—

(i) by the regulations; or

(ii) by an NRM plan; or

(iii) by a Development Plan under the Development Act 1993;

land means, according to the context—

(a) land as a physical entity, including land under water; or

(b) any legal estate or interest in, or right in respect of, land,

and includes any building or structure fixed to land;

LGA means the Local Government Association of South Australia;

licensed well driller means a person who holds a licence under Chapter 7 to drill wells;

management agreement means an agreement under Chapter 11;

Mining Act means any of the following:

(a) the Mining Act 1971, the Opal Mining Act 1995, the Petroleum Act 2000 or the Petroleum (Submerged Lands) Act 1982;

(b) the Cooper Basin (Ratification) Act 1975, the Roxby Downs (Indenture Ratification) Act 1982 or the Stony Point (Liquids Project) Ratification Act 1981;

(c) any other Act relating to the production, recovery, management, conveyance or delivery of minerals brought within the ambit of this definition by the regulations;

Mount Lofty Ranges Watershed means the area prescribed by regulation for the purposes of this definition;

Murray-Darling Basin has the same meaning as in the Murray-Darling Basin Act 1993;

native animal means a protected animal within the meaning of the National Parks and Wildlife Act 1972 and any species included in Schedule 10 of that Act, but does not include a dingo or any other animal of a class excluded from the ambit of this definition by the regulations;

native vegetation has the same meaning as in the Native Vegetation Act 1991;

natural resources includes—

(a) soil;

(b) water resources;

(d) native vegetation, native animals and other native organisms;

(e) ecosystems;

(f) other aspects of the environment brought within the ambit of this definition by the regulations;

NRM authority means a regional NRM board or an NRM group;

NRM Council means the Natural Resources Management Council established under Chapter 3 Part 2;

NRM Fund means the Natural Resources Management Fund established under Chapter 5 Part 2 Division 1;

NRM group means a body established under Chapter 3 Part 4 and includes a body appointed under that Part to be an NRM group under this Act;

NRM plan means a plan under Chapter 4;

NRM region or region means a Natural Resources Management Region established under Chapter 3 Part 3 Division 1;

NRM Register means the register established under section 229;

NRM water levy means—

(a) a water levy; or

(b) a special purpose water levy;

occupier of land means a person who has, or is entitled to, possession or control of the land (other than a mortgagee in possession unless the mortgagee has assumed active management of the land), or who is entitled to use the land as the holder of native title in the land;

OC-NRM levy means a levy declared under section 99;

owner of land means—

(a) if the land is unalienated from the Crown—the Crown; or

(b) if the land is alienated from the Crown by grant in fee simple—the owner (at law or in equity) of the estate in fee simple; or

(c) if the land is held from the Crown by lease or licence—the lessee or licensee, or a person who has entered into an agreement to acquire the interest of the lessee or licensee; or

(d) if the land is held from the Crown under an agreement to purchase—the person who has the right to purchase; or

(e) a person who holds native title in the land; or

(f) a person who has arrogated to himself or herself (lawfully or unlawfully) the rights of an owner of the land,

and includes an occupier of the land and any other person of a prescribed class included within the ambit of this definition by the regulations;

pastoral land means land of the Crown that is subject to a pastoral lease;

plant means vegetation of any species and includes the seeds and any part of any such vegetation, or any other form of plant material, but does not include any vegetation or material excluded from the ambit of this definition by the regulations;

prescribed lake means a lake declared to be a prescribed lake under section 127;

prescribed watercourse means a watercourse declared to be a prescribed watercourse under section 127;

prescribed water resource includes underground water to which access is obtained by prescribed wells;

prescribed well means a well declared to be a prescribed well under section 127;

private land means land that is not—

(a) dedicated land within the meaning of the Crown Lands Act 1929; or

(b) unalienated land of the Crown; or

(d) vested in or under the care, control or management of a council;

public authority means—

(a) a Minister; or

(b) an agency or instrumentality of the Crown; or

record means—

(a) a documentary record; or

(b) a record made by an electronic, electro-magnetic, photographic or optical process; or

regional authorised officer means a person appointed as a regional authorised officer under Chapter 3 Part 6;

regional local government association means a regional association established by the local government sector (whether under section 43 of the Local Government Act 1999 or under the Associations Incorporation Act 1985, or in some other manner recognised by the regulations for the purposes of this definition);

regional NRM board means a body established under Chapter 3 Part 3 and includes a body appointed under that Part to be a regional NRM board under this Act;

regional NRM levy means a levy imposed by a council under section 97;

regional NRM plan means a plan prepared by a regional NRM board under Chapter 4 Part 2;

repealed Act means an Act repealed under Schedule 4 Part 17;

residential premises means a building occupied as a place of residence and includes the curtilage of such a building;

River Murray has the same meaning as in the River Murray Act 2003;

River Murray Protection Area means a River Murray Protection Area under the River Murray Act 2003;

road reserve means land set aside for the purposes of a public road, whether or not it is being used for that purpose;

SA Water means the South Australian Water Corporation;

sell includes—

(a) barter, offer or attempt to sell;

(b) receive for sale;

(d) cause or permit to be sold or offered for sale;

(e) send, forward or deliver for sale;

(f) dispose of by any method for valuable consideration;

(g) dispose of to an agent for sale on consignment;

(h) sell for the purposes of resale;

site value means site value as defined in the Valuation of Land Act 1971;

special purpose water levy means a levy declared under section 105;

spouse includes putative spouse (whether or not a declaration of the relationship has been made under the Family Relationships Act 1975);

State includes any part of the sea—

(a) that is within the limits of the State; or

(b) that is from time to time included in the coastal waters of the State by virtue of the Coastal Waters (State Powers) Act 1980 of the Commonwealth;

State authorised officer means a person appointed as a State authorised officer under Chapter 3 Part 6;

State NRM Plan means the plan prepared by the NRM Council under Chapter 4 Part 1;

surface water means—

(a) water flowing over land (except in a watercourse)—

(i) after having fallen as rain or hail or having precipitated in any other manner; or

(ii) after rising to the surface naturally from underground;

(b) water of the kind referred to in paragraph (a) that has been collected in a dam or reservoir;

surface water prescribed area means a part of the State declared to be a surface water prescribed area under section 127;

to take water from a water resource includes—

(a) to take water by pumping or syphoning the water;

(b) to stop, impede or divert the flow of water over land (whether in a watercourse or not) for the purpose of collecting the water;

(d) to release water from a lake;

(e) to permit water to flow under natural pressure from a well;

(f) to permit stock to drink from a watercourse, a natural or artificial lake, a dam or reservoir;

(g) to undertake or permit any other prescribed activity;

(h) to cause, permit or suffer any activity referred to in a preceding paragraph;

underground water means—

(a) water occurring naturally below ground level;

(b) water pumped, diverted or released into a well for storage underground;

vehicle includes any—

(a) vessel or craft;

(b) plant or equipment designed to be moved or operated by a driver;

water allocation—

(a) in respect of a water licence means the water (taking) allocation or the water (holding) allocation endorsed on the licence;

(b) in respect of water taken pursuant to an authorisation under section 130 means the maximum quantity of water that can be taken and used pursuant to the authorisation;

water allocation plan means a water allocation plan prepared by a regional NRM board under Chapter 4 Part 2;

watercourse means a river, creek or other natural watercourse (whether modified or not) in which water is contained or flows whether permanently, intermittently or occasionally and includes—

(a) a dam or reservoir that collects water flowing in a watercourse;

(b) a lake through which water flows;

(c) a channel (but not a channel declared by regulation to be excluded from the ambit of this definition) into which the water of a watercourse has been diverted;

(d) part of a watercourse;

(e) an estuary through which water flows;

(f) any other natural resource, or class of natural resource, designated as a watercourse for the purposes of this Act—

(i) by the regulations; or

(ii) by an NRM plan;

water (holding) allocation in respect of a water licence means the quantity of water that the licensee is entitled to request that the Minister convert to a water (taking) allocation under Chapter 7 Part 3 Division 2;

water levy means a levy declared under section 103;

water licence means a licence granted under Chapter 7 Part 3 authorising the holder (subject to the taking of any step or steps required by this Act) to take (or to hold) water from a watercourse, lake or well or to take (or to hold) surface water from a surface water prescribed area and includes a licence granted under that Part endorsed with a water (holding) allocation;

water resource means a watercourse or lake, surface water, underground water, stormwater and effluent;

water (taking) allocation in respect of a water licence means the quantity of water that the licensee is entitled to take and use pursuant to the licence;

well means—

(a) an opening in the ground excavated for the purpose of obtaining access to underground water;

(b) an opening in the ground excavated for some other purpose but that gives access to underground water;

wetland means an area that comprises land that is permanently, periodically, intermittently or occasionally inundated with water (whether through a natural or artificial process) where the water may be static or flowing and may range from fresh water to saline water and where the inundation with water influences the biota or ecological processes (whether permanently or from time to time) and includes any other area designated as a wetland—

(a) by the regulations; or

(b) by an NRM plan; or

but does not include—

(d) a dam or reservoir that has been constructed by a person wholly or predominantly for the provision of water for primary production or human consumption; or

(e) an area within an estuary or within any part of the sea; or

(f) an area excluded from the ambit of this definition by the regulations.

(2) For the purposes of this Act—

(a) a reference to land in the context of the physical entity includes all aspects of land, including the soil, organisms and other components and ecosystems that contribute to the physical state and environmental, social and economic value of land;

(b) a reference to a water resource includes all aspects of a water resource, including the water, organisms and other components and ecosystems that contribute to the physical state and environmental value of a water resource.

(3) For the purposes of this Act—

(a) a reference to a watercourse is a reference to either—

(i) the bed and banks of the watercourse (as they may exist from time to time); or

(A) any ecosystem processes or biodiversity associated with an estuary;

(B) estuarine habitats adjacent to an estuary.

(4) A reference in this Act to varying a water licence includes a reference to varying the water allocation of the licence or the conditions attached to the licence.

(5) The conversion of the whole or a part of a water (holding) allocation to a water (taking) allocation under section 155 will be taken for the purposes of this Act to be the allocation by the Minister of the quantity of water concerned as a water (taking) allocation endorsed on the relevant water licence.

(6) For the purposes of this Act, native vegetation is cleared (or would be cleared) if the relevant activity constitutes (or would constitute) clearance of the native vegetation under the Native Vegetation Act 1991.

(7) A regulation, NRM plan or Development Plan may make a designation for the purposes of a definition under this section by the use of a map or maps prescribed by the regulation or included in the plan (as the case may be).

(8) For the purposes of this Act, a person is an associate of another if—

(a) they are partners; or

(b) one is a spouse, parent or child of another; or

(c) they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or

(d) one is a body corporate or other entity (whether inside or outside Australia) and the other is a director or member of the governing body of the body corporate or other entity; or

(e) one is a body corporate or other entity (whether inside or outside Australia) and the other is a person who has a legal or equitable interest in 5 per cent or more of the share capital of the body corporate or other entity; or

(f) they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth; or

(g) a relationship of a prescribed kind exists between them; or

(h) a chain of relationships can be traced between them under any one or more of the above paragraphs.

(9) For the purposes of subsection (8), a beneficiary of a trust includes an object of a discretionary trust.

(10) The Governor may, by regulation, declare that a particular reference to this Act in a provision of this Act will be taken to include a reference to an Act, or to the provision of an Act, repealed by this Act (and that regulation will then have effect in accordance with its terms).

4—Interaction with other Acts

(1) Except where the contrary intention is expressed in this or any other Act, this Act is in addition to and does not limit or derogate from the provisions of any other Act.

(2) This Act is subject to the following Acts and agreements:

(a) the agreement (as amended from time to time) approved by the Murray-Darling Basin Act 1993;

(b) the Border Groundwater Agreement (as amended from time to time) approved by the Groundwater (Border Agreement) Act 1985;

(c) the Lake Eyre Basin Intergovernmental Agreement (as amended from time to time) ratified and approved under the Lake Eyre Basin (Intergovernmental Agreement) Act 2001;

(d) the indenture (as amended from time to time) ratified and approved by the Roxby Downs (Indenture Ratification) Act 1982;

(e) the Pulp and Paper Mills Agreement Act 1958;

(f) the Pulp and Paper Mill (Hundred of Gambier) Indenture Act 1961;

(g) the Pulp and Paper Mill (Hundreds of Mayurra and Hindmarsh) Act 1964.

(3) Chapter 2 Part 2 and Chapter 6 do not apply in relation to any minerals or other substances or facilities administered under a Mining Act, or any activity conducted under a tenement granted under a Mining Act.

5—Territorial and extra-territorial operation of Act

(1) Subject to this section, this Act applies to the whole of the State.

(2) The Governor may, by regulation, exclude a part of the State from the operation of this Act, or specified provisions of this Act.

(3) This Act extends to an activity or circumstance undertaken or existing outside the State that may affect the natural resources of the State.

6—Act binds Crown

(1) This Act binds the Crown in right of this State and also, so far as the legislative power of the State extends, the Crown in all its other capacities, but not so as to impose any criminal liability on the Crown.

(2) Without limiting or derogating from subsection (1), all agencies and instrumentalities of the Crown must endeavour, as far as practicable, to act consistently with the State NRM Plan and other relevant NRM plans under this Act.

Division 2—The Council's membership

14—Composition of NRM Council

(1) The NRM Council consists of 9 members appointed by the Governor on the nomination of the Minister, being persons who collectively have, in the opinion of the Minister, the knowledge, skills and experience necessary to enable the NRM Council to carry out its functions effectively.

(2) Of those members:

(a) 1 (who will be the presiding member) must be a person who has, in the opinion of the Minister, extensive experience in the management of natural resources and been actively involved in community affairs; and

(b) 1 must be nominated from a panel of 3 persons submitted by the LGA; and

(d) 1 must be nominated from a panel of 3 persons submitted by the South Australian Farmers Federation Incorporated; and

(e) 1 must be nominated after the Minister has consulted with bodies that, in the opinion of the Minister, are suitable to represent the interests of Aboriginal people for the purposes of this Act.

(3) If the Minister does not receive a submission from a body under subsection (2)(b), (c), or (d) within a reasonable time after requesting the submission of 3 names by that body, the Minister may, by notice in writing, request the relevant body to make a nomination within a time (being not less than 1 month) allowed in the notice and if a nomination is not made within that time, then the Minister may proceed to nominate a person determined by the Minister in lieu of a person submitted by that body.

(4) Before nominating the remaining members of the NRM Council, the Minister must place a notice in a newspaper circulating generally throughout the State inviting expressions of interest for appointment to the NRM Council within a period specified by the Minister, and then take into account any expressions of interest received within the relevant time.

(5) For the purposes of subsections (1) and (2), the Minister should (as far as is reasonably practicable in the circumstances)—

(a) give consideration to nominating persons so as to provide a range of knowledge, skills and experience across the following areas:

(i) primary production or pastoral land management (on the basis of practical experience in these areas);

(ii) soil conservation and land management;

(iii) conservation and biodiversity management;

(iv) water resources management;

(v) business administration;

(vi) local government or local government administration;

(vii) urban and regional planning;

(viii) Aboriginal interests in the land and water, and Aboriginal heritage;

(ix) coast, estuarine and marine management;

(x) fisheries or aquaculture;

(xi) pest animal and plant control;

(xii) natural and social science; and

(b) endeavour to nominate persons who are able to demonstrate an interest in ensuring the sustainable use and conservation of natural resources and in participating in community affairs; and

(6) At least 2 members of the NRM Council must be women and at least 2 members must be men.

(7) The Governor may, on the nomination of the Minister, appoint a suitable person to be the deputy of a member of the NRM Council.

(8) A deputy may act as a member of the NRM Council during any period of absence of the member in relation to whom the deputy has been appointed.

(9) The Minister may, by instrument in writing, authorise a person or persons to attend any meeting of the NRM Council in order to represent the interests of the Commonwealth, the State or local government.

(10) A person who holds an authorisation under subsection (9) is entitled—

(a) to receive notice of any meeting of the NRM Council; and

(b) to have access to papers provided to members of the NRM Council for the purposes of any meeting; and

15—Conditions of membership

(1) A member of the NRM Council will hold office on conditions determined by the Governor for a term, not exceeding 4 years, specified in the instrument of appointment and will, at the expiration of a term of office, be eligible for reappointment.

(2) The Governor may remove a member of the NRM Council from office—

(a) for breach of, or non-compliance with, a condition of appointment; or

(b) for mental or physical incapacity to carry out duties of office satisfactorily; or

(d) for dishonourable conduct.

(3) The office of a member of the NRM Council becomes vacant if the member—

(a) dies; or

(b) completes a term of office and is not reappointed; or

(d) is found guilty of an indictable offence; or

(e) is removed from office by the Governor under subsection (2).

16—Allowances and expenses

A member of the NRM Council is entitled to fees, allowances and expenses approved by the Governor.

17—Validity of acts

An act or proceeding of the NRM Council is not invalid by reason only of a vacancy in its membership, a defect in the appointment of a member or a situation where all of the requirements of section 14(5) are not satisfied.

Division 3—Membership

26—Composition of boards

(1) A regional NRM board consists of up to 9 members appointed by the Governor on the nomination of the Minister, being persons who collectively have, in the opinion of the Minister, after taking into account any recommendation of the NRM Council, knowledge, skills and experience necessary to enable the board to carry out its functions effectively.

(2) Before nominating a person or persons under subsection (1), the Minister—

(a) must place a notice in a newspaper circulating generally throughout the region inviting expressions of interest for appointment to the relevant board within a period specified in the notice, and then take into account any recommendation of the NRM Council after the NRM Council has been given an opportunity to consider any expressions of interest received within the relevant time; and

(b) should, insofar as may be relevant to the circumstances of the particular case, consult with—

(i) the LGA; and

(ii) such bodies representing the interests of persons involved in primary production, conservation or natural resource management, or Aboriginal people, as the Minister considers to be appropriate in the circumstances.

(3) The Chief Executive of the Department must ensure that a copy of a notice under paragraph (a) of subsection (2) is published on the Department's website within 2 business days after being published under that paragraph.

(4) For the purposes of subsection (1), the Minister should (as far as is reasonably practicable in the circumstances)—

(a) give consideration to nominating persons so as to provide a range of knowledge, skills and experience across the following areas:

(i) community affairs at the regional level;

(ii) primary production or pastoral land management;

(iii) soil conservation and land management;

(iv) conservation and biodiversity management;

(v) water resources management;

(vi) business administration;

(vii) local government or local government administration;

(viii) urban or regional planning;

(ix) Aboriginal interest in the land and water, and Aboriginal heritage;

(x) pest animal and plant control;

(xi) natural and social science;

(xii) if relevant—coast, estuarine and marine management, fisheries or aquaculture; and

(b) endeavour to nominate persons who are able to demonstrate an interest in ensuring the sustainable use and conservation of natural resources and an awareness of natural resource issues across the relevant region; and

(i) that a majority of the members of the board reside within the relevant region; and

(ii) that a majority of the members of the board are engaged in an activity related to the management of land.

(5) At least 1 member of a regional NRM board must be a woman and at least 1 member must be a man.

(6) At least 1 member of a regional NRM board must be a member or officer of a council at the time of his or her appointment, unless—

(a) the board's region does not include any part of the area of a council; or

(b) the Minister cannot, after taking reasonable steps, find a member or officer of a council who—

(i) in the opinion of the Minister, is suitable to be appointed as a member of the board; and

(ii) is willing and available to be a member of the board.

(7) The Governor must appoint a suitable member of a regional NRM board to be the presiding member of the board.

(8) The Governor may appoint a suitable person to be the deputy of a member of a regional NRM board.

(9) A deputy may act as a member of a regional NRM board during any period of absence of the member in relation to whom the deputy has been appointed.

(10) The Minister may, by instrument in writing, authorise a person or persons to attend any meeting of a regional NRM board in order to represent the interests of the Commonwealth, the State or local government.

(11) A person who holds an authorisation under subsection (10) is entitled—

(a) to receive notice of any meeting of the board; and

(b) to have access to papers provided to members of the board for the purposes of any meetings; and

27—Conditions of membership

(1) A member of a regional NRM board will hold office on conditions determined by the Governor for a term, not exceeding 4 years, specified in the instrument of appointment and will, at the expiration of a term of office, be eligible for reappointment.

(2) The Governor may remove a member of a regional NRM board from office—

(a) for breach of, or non-compliance with, a condition of appointment; or

(b) for mental or physical incapacity to carry out duties of office satisfactorily; or

(d) for dishonourable conduct; or

(e) if serious irregularities have occurred in the conduct of the board's affairs or the board has failed to carry out its functions satisfactorily and the Minister considers, after consultation with the NRM Council, that the board should be reconstituted for that reason.

(3) The office of a member of a regional NRM board becomes vacant if the member—

(a) dies; or

(b) completes a term of office and is not reappointed; or

(d) is found guilty of an indictable offence; or

(e) is removed from office by the Minister under subsection (2).

28—Allowances and expenses

A member of a regional NRM board is entitled to fees, allowances and expenses approved by the Governor.

29—Validity of acts

An act or proceeding of a regional NRM board is not invalid by reason only of a vacancy in its membership, a defect in the appointment of a member or a situation where all of the requirements of section 26(4) are not satisfied.

Division 5—Powers of boards

31—General powers

(1) A regional NRM board has the power to do anything necessary, expedient or incidental to—

(a) performing the functions of the board under this or any other Act; or

(b) assisting in the administration of this Act; or

(2) Without limiting the operation of subsection (1) (but subject to subsections (3) and (4)), a regional NRM board may—

(a) enter into any form of contract, agreement or arrangement; and

(b) acquire, hold, deal with and dispose of real and personal property or any interest in real or personal property; and

(d) seek expert, technical or other advice on any matter from any person or such terms and conditions as the board thinks fit; and

(e) carry out projects; and

(f) act in conjunction with any other authority or person.

(3) A regional NRM board must not, without the approval of the Minister—

(a) undertake an activity with the object (or principal object) of securing a profit; or

(b) participate in any commercial or business activity.

(4) The Minister may, by instrument in writing given to a regional NRM board, limit or regulate the powers of the board in any other respect.

(5) Subject to any direction of the Minister, a regional NRM board may, as the board thinks fit, undertake activities outside its region.

(6) Money received by a regional NRM board under this Act or in performing its functions or duties or exercising its powers under this Act is not payable into the Consolidated Account and may be applied by the board without further appropriation by Parliament.

(7) In this section—

project includes any form of work, scheme, undertaking or other activity.

32—Power to acquire land

(1) A regional NRM board may, with the approval of the Minister given by instrument in writing, acquire land pursuant to the Land Acquisition Act 1969.

(2) The Minister may give an approval under subsection (1) if the Minister considers that the acquisition of the land is reasonably necessary to further the objects of this Act.

(3) Nothing in this section limits or affects—

(a) the ability of a regional NRM board to acquire land by agreement; or

(b) the operation of any other section of this Act.

33—Special powers to carry out works

(1) Without limiting any other provision of this Act, a regional NRM board may—

(a) construct, maintain or remove any infrastructure; and

(b) excavate any land; and

(i) fix posts, stakes or other markers on the land; and

(ii) dig trenches or sink test holes in the land to determine the nature of the top soil and underlying strata; and

(iii) remove samples for analysis; and

(d) alter water table levels, stop or reduce the flow of water in a watercourse, divert water flowing in a watercourse to another watercourse or to a lake or control the flow of water in in any other manner; and

(e) hold water in a watercourse or lake or by any other means; and

(f) divert water to an underground aquifer, dispose of water to a lake, underground aquifer or the sea, or deal with water in any other manner; and

(g) deepen, widen or change the course of a watercourse, deepen or widen a lake or take action to remove any obstruction to the flow of water; and

(h) undertake any other form of work (including work undertaken for the purposes of stormwater management or flood mitigation); and

(i) undertake any testing, monitoring or evaluation; and

(j) undertake any other activity of a prescribed kind.

(2) A regional NRM board must not exercise a power under subsection (1)(a), (b), (g) or (h) in relation to private land with the intention that any infrastructure, devices or works will be permanent unless—

(a) it is intended that the owner of the private land will undertake the care, control or management of any relevant infrastructure, devices or works; or

(b) the board has first acquired an easement or other appropriate interest over the relevant land.

(3) Subsection (2) does not limit or affect the ability of a regional NRM board to acquire land by agreement for the purpose of constructing any infrastructure or performing any work.

(4) In this section—

lake includes an artificial lake, dam or reservoir.

34—Entry and occupation of land

(1) This section does not apply to, or in relation to, land the use, or the care, control and management, of which is vested in a regional NRM board.

(2) For the purpose of carrying out its functions or exercising its powers, a regional NRM board, or a person authorised by a regional NRM board, may enter and occupy any land.

(3) A regional NRM board or a person authorised by a regional NRM board must give reasonable notice of his or her intention to enter, or to enter and occupy, land to the occupier of the land.

(4) The period of the notice must be at least 24 hours except—

(a) where the occupier has given his or her consent; or

(b) in an emergency, in which case the person proposing to enter must give such notice (if any) as he or she considers is reasonable in the circumstances.

(5) A regional NRM board or other person acting under this section may not enter residential premises except with the consent of the occupier.

(6) A regional NRM board or other person entering or occupying land under this section—

(a) must cause as little harm and inconvenience as practicable; and

(b) must not occupy the land for any longer than is reasonably necessary; and

(d) must co-operate as far as practicable with any owner or occupier of the land.

(7) A person must not, without reasonable excuse, obstruct or hinder a person exercising powers under this section.

Maximum penalty: $20 000.

(8) A person may use force to enter land under this section—

(a) on the authority of a warrant issued by a magistrate; or

(b) if the person believes, on reasonable grounds, that the circumstances require immediate entry on to the land.

(9) A magistrate must not issue a warrant under subsection (8) unless satisfied, on information given on oath, that the warrant is reasonably required in the circumstances.

(10) An application for a warrant under subsection (8)—

(a) may be made either personally or by telephone; and

(b) must be made in accordance with any procedures prescribed by the regulations.

35—Special vesting of infrastructure

(1) Subject to this section, the Governor may, by proclamation made on the recommendation of the Minister, vest in a regional NRM board the use of any infrastructure vested in or under the care, control or management of a public authority.

(2) Subject to this section, the Governor may, by proclamation made on the recommendation of the Minister, vest in a regional NRM board the use of any land vested in or under the care, control or management of a public authority that is specified in the board's regional NRM plan as being land that should be under the care, control and management of the board.

(3) Subject to subsection (4), if the use of infrastructure or land is vested in a regional NRM board under subsection (1) or (2), the care, control and management of the infrastructure or land is also vested in the board and the board is responsible for the maintenance and repair of the infrastructure or the maintenance of the land.

(4) The use of infrastructure or land will be vested exclusively in a regional NRM board by a proclamation under subsection (1) or (2) unless the proclamation provides for the use to be shared by the board and a public authority in which case the proclamation must—

(a) specify the respective responsibilities of the board and the public authority for the care, control and management and the maintenance and repair of the infrastructure or land; and

(b) include any other conditions that are necessary or desirable, in the Governor's opinion, relating to the shared use of the infrastructure or land.

(5) A regional NRM board is not liable to pay compensation to a public authority in respect of a proclamation under subsection (1) and (2).

(6) Subject to this section, the Governor may, by subsequent proclamation made on the recommendation of the Minister, vary or revoke a proclamation under this section.

(7) The Governor cannot make a proclamation under subsection (1), (2) or (6) in relation to infrastructure or land vested in or under the care, control or management of a council or council subsidiary without the consent in writing of the council or council subsidiary.

Division 10—Related matters

43—Use of facilities

A regional NRM board may, by arrangement with the relevant body, make use of the services of the staff, equipment or facilities of—

(a) an administrative unit in the Public Service; or

(b) a public authority.

44—Board's power to provide financial assistance etc

(1) A regional NRM board may provide financial or any other form of assistance—

(a) to councils, persons carrying on business, community or volunteer groups or any other persons if the council, person or group is engaged in an activity, whether in the board's region or not, that will improve the state of any natural resources, or that relates in any other way to the management of natural resources, taking into account the provisions of the board's regional NRM plan; or

(b) to assist persons who have been detrimentally affected as a result of the board's implementation of its regional NRM plan; or

(2) A regional NRM board may require a person who wishes to obtain financial or other assistance under subsection (1) to make a written submission to the board setting out—

(a) the nature of the assistance requested (and, in the case of financial assistance, the amount requested); and

(b) the purpose or purposes for which and the manner in which the assistance will be used; and

(3) A regional NRM board may make copies of submissions received by it under subsection (2) available for inspection and purchase by members of the public.

(4) A regional NRM board may provide financial or other assistance on such conditions as the board thinks fit.

45—Assignment of responsibility for infrastructure to another person or body

(1) A regional NRM board may assign any responsibility for the care, control or management of infrastructure—

(a) to an NRM group; or

(b) to an owner or occupier of land on which the infrastructure is situated if the relevant owner or occupier agrees to the assignment; or

(2) The Minister must ensure that reasonable steps have been taken to consult with any owner or occupier of the relevant land before an assignment is made under subsection (1)(c).

(3) An assignment under subsection (1)(b) or (c) will be effected by agreement entered into in accordance with the regulations.

(4) An agreement under subsection (3) may include arrangements for access to the land on which the infrastructure is situated.

(5) The Registrar-General must, on an application by the relevant regional NRM board, note an agreement under subsection (3) against the instrument of title for the land where the infrastructure is situated or, in the case of land not under the provisions of the Real Property Act 1886, against the land where the infrastructure is situated.

(6) If a note has been entered under subsection (5), an arrangement for access to the relevant land is, despite the provisions of the Real Property Act 1886, binding on each owner of the land from time to time and on any occupier of the land.

(7) The Registrar-General must, on the application of the relevant regional NRM board, enter a note of any rescission or amendment of an agreement under subsection (3) against the instrument of title, or against the land (but must otherwise ensure that the note is not removed once made).

46—Appointment of body to act as a board

(1) The Governor may, by regulations made on the recommendation of the Minister, appoint a body specified in the regulations to be a regional NRM board under this Act.

(2) The regulation must—

(a) identify the NRM region in relation to which the body is appointed; and

(b) set out the functions of the body (if any) that are in addition to the functions prescribed by this Act.

(3) The Governor may, by subsequent regulation made on the recommendation of the Minister, vary or revoke a regulation under this section.

(4) A regulation revoking a regulation may provide that the assets, rights and liabilities of the body that relate to its functions under this Act will vest in or attach to—

(a) the Crown; or

(b) a Minister; or

(d) any other agency or instrumentality of the Crown; or

(e) any other person or body.

(5) Division 4, Division 5, Division 6, Division 7 and Division 8, and the other provisions of this Division, and any other provisions of this Act prescribed by the regulations, apply to and in relation to a body appointed under this section as if it were a regional NRM board, subject to such exclusions or modifications as may be prescribed by the regulations.

(6) A body appointed under this section is subject to direction by the Minister in performing its functions and exercising its powers under this Act.

(7) If a body appointed under this section has been established by or under another Act and there is a conflict between a function of the body under that Act and a function of the body when acting as a regional NRM board under this Act, the body must perform its function under its originating Act in preference to its function under this Act.

(8) If a body must perform a function under subsection (7) in preference to a function under this Act, the Chief Officer may, after consultation with the Minister, perform the relevant function under this Act as if the Chief Officer were constituted as a regional NRM board.

South Australian Bills

NATURAL RESOURCES MANAGEMENT BILL 2004