NATIVE TITLE - consent determination - conditions prescribed by ss 87 and 87A of the Native Title Act 1993 (Cth) satisfied - resolution by agreement of claim for determination of native title
Source
Original judgment source is linked above.
Catchwords
NATIVE TITLE - consent determination - conditions prescribed by ss 87 and 87A of the Native Title Act 1993 (Cth) satisfied - resolution by agreement of claim for determination of native title
Judgment (16 paragraphs)
[1]
Preamble
A The Applicant first lodged Native Title Determination Application No. SAD 6016 of 1998 (the Application) with the National Native Title Tribunal on 21 August 1997 in relation to lands and waters in northern South Australia and south western Queensland. The Application was referred to the Federal Court of Australia on 30 September 1998.
B The Applicant, the State of South Australia, the State of Queensland and the other respondents have reached an agreement as to the terms of a determination of native title to be made in relation to the land and waters. They have filed with this Court pursuant to s 87 of the Native Title Act 1993 (Cth) (the NT Act) an agreement in writing to seek the making of consent orders for a determination.
C The Parties acknowledge that the effect of the making of the determination will be that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the Native Title Holders for the Native Title Land as defined by Order 4 below.
D The Parties have requested that the Court determine the proceedings without a trial.
Being satisfied that an order in the terms set out below is within the power of the Court and it appearing to the Court appropriate to do so, pursuant to s 87 of the NT Act, and by the consent of the Parties:
THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT:
There be a determination of native title in the terms set out below.
Each party to the proceeding bear its own costs.
Determination Area
The Determination Area is the land and waters described in Area A and Area B as set out in Schedule 1 and depicted in the maps contained in Schedule 2.
Native title exists in the Native Title Land, being that part of the Determination Area described in Schedule 3, subject to the qualifications set out in that Schedule.
Native title has been extinguished in relation to that part of the Determination Area described in Schedule 4.
Native Title Holders
The native title rights and interests are held by the Native Title Holders.
Under the relevant traditional laws and customs of the Wangkangurru/Yarluyandi People, the Native Title Holders comprise those living Aboriginal people who both self-identify as Wangkangurru or Yarluyandi and who are recognised as being Wangkangurru and/or Yarluyandi by other Wangkangurru and/or Yarluyandi people based on:
(a) descent, including adoption in accordance with Wangkangurru/Yarluyandi law and custom, from a Wangkangurru, Yarluyandi, Ngamani or Karanguru Ancestor; and
(b) possession of knowledge of the country and its spiritual and mythical propensities and qualities.
Rights and Interests
Subject to Orders 10, 11, 12, 13, 14 and 15 the nature and extent of the native title rights and interests in the Native Title Land described in Part A and Part B of Schedule 3 are the non-exclusive rights to use and enjoy those lands and waters in accordance with the Native Title Holders' traditional laws and customs, being:
(a) the right to access and move about the Native Title Land;
(b) the right to live and camp on the Native Title Land for the purpose of exercising their native title rights and interests, and for those purposes erect temporary shelters and other structures on the Native Title Land;
(c) the right to hunt and fish on the land and waters of the Native Title Land;
(d) the right to gather and use the Natural Resources of the Native Title Land;
(e) the right to share and exchange the Natural Resources and Natural Water Resources of the Native Title Land;
(f) the right to take and use the Natural Water Resources of the Native Title Land;
(g) the right to cook on the Native Title Land and to light fires for domestic purposes but not for the purposes of hunting or clearing vegetation;
(h) the right to engage and participate in cultural activities on the Native Title Land including those relating to births and deaths;
(i) the right to conduct ceremonies and hold meetings on the Native Title Land;
(j) the right to teach on the Native Title Land the physical and spiritual attributes of locations;
(k) the right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders, under their traditional laws and customs, on the Native Title Land; and
(l) the right to be accompanied on to the Native Title Land by those people who, though not Native Title Holders, are:
(i) spouses of Native Title Holders; or
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Native Title Land; or
(iii) people who have rights in relation to the Native Title Land according to the traditional laws and customs acknowledged by the Native Title Holders.
Subject to Orders 10, 11, 12 and 14, the nature and extent of the native title rights and interests in relation to that part of the Native Title Land described in Part C of Schedule 3 are the non-exclusive rights to access, be present on and traverse those lands and waters.
General Limitations
The native title rights and interests described in Orders 8 and 9 are for personal, domestic and communal use but do not include commercial use of the Native Title Land or the Natural Resources and Natural Water Resources from it.
The native title rights and interests described in Orders 8 and 9 do not confer possession, occupation, use and enjoyment of those lands and waters on the Native Title Holders to the exclusion of others.
The native title rights and interests described in Orders 8 and 9 are subject to and exercisable in accordance with:
(a) the traditional laws and customs of the Native Title Holders;
(b) the laws of the State of South Australia, the State of Queensland and the Commonwealth, including the common law.
In relation to Area A of the Determination Area there are no native title rights or interests in or in relation to:
(a) minerals as defined in s 6 of the Mining Act 1971 (SA);
(b) Petroleum, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA);
(c) a naturally occurring underground accumulation of a regulated substance as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth;
(d) a natural reservoir, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; or
(e) geothermal energy, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA) the source of which is below a depth of 100 metres from the surface of the earth.
For the purposes of this Order 13 and the avoidance of doubt:
(f) a geological structure (in whole or in part) on or at the earth's surface or a natural cavity which can be accessed or entered by a person through a natural opening in the earth's surface, is not a natural reservoir;
(g) thermal energy contained in a hot or natural spring is not geothermal energy as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA);
(h) the absence from this Order of any reference to a natural reservoir or a naturally occurring accumulation of a regulated substance, as those terms are defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), above a depth of 100 metres below the surface of the earth or geothermal energy the source of which is above a depth of 100 metres below the surface of the earth is not, of itself, to be taken as an indication of the existence or otherwise of native title rights or interests in such natural reservoir, naturally occurring accumulation of a regulated substance or geothermal energy.
In relation to Area B of the Determination Area there is no native title in or in relation to:
(a) minerals as defined in the Mineral Resources Act 1989 (Qld);
(b) petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); and
(c) geothermal energy and geothermal resources as defined in the Geothermal Energy Act 2010 (Qld).
For the avoidance of doubt, the native title interest expressed in Order 8(f) (the right to use the Natural Water Resources of the Native Title Land) is subject to the Natural Resources Management Act 2004 (SA) and Water Act 2000 (Qld).
Other Interests & Relationship with Native Title
The nature and extent of other rights and interests in relation to the Native Title Land are set out at Schedule 5 (the Other Interests).
The relationship between the native title rights and interests in the Native Title Land that are described in Orders 8 and 9 and the Other Interests set out at Schedule 5 is that:
(a) the Other Interests continue to have effect, and the rights conferred by or held under the Other Interests may be exercised notwithstanding the existence of the native title rights and interests;
(b) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and
(c) the Other Interests and any activity that is required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests but, subject to any application of s 24IB or s 24JA of the NT Act, will not extinguish them.
The native title is subject to extinguishment in accordance with the NT Act.
AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS:
The native title is to be held in trust.
The Wangkangurru/Yarluyandi Aboriginal Corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:
(a) be the prescribed body corporate for the purposes of s 57(2) of the NT Act; and
(b) perform the functions mentioned in s 57(3) of the NT Act after becoming a registered native title body corporate.
In relation to Area A of the Determination Area , the Applicant (through the Prescribed Body Corporate) the State of South Australia, or any other respondent Party have liberty to apply on 14 days' notice to a single judge of the Court for the following purposes:
(a) to establish the precise location and boundaries of any public works and adjacent land and waters referred to in items 1 or 2(a) of Schedule 4; or
(b) to establish the effect on native title rights and interests of any public works referred to in item 2(a) of Schedule 4.
Interpretation & Declaration
In this determination, including its schedules:
(a) unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Part 15 of the NT Act;
(b) "Local Government Act" has the meaning in the Local Government Act 2009 (Qld);
(c) "NPWA Reserve" means a reserve as defined in the National Parks and Wildlife Act 1972 (SA);
(d) "Natural Resources" means:
(i) any animal, plant, fish and bird life found on or in the land and waters of the Native Title Land, including but not limited to medicinal plants, wild tobacco, feathers and resin; and
(ii) any clays, soil, sand, gravel, rock or ochre found on or below the surface of the Native Title Land;
that have traditionally been taken and used by the Native Title Holders, but does not include:
(i) animals that are the private personal property of another;
(ii) crops that are the private personal property of another; and
(iii) minerals as defined in the Mineral Resources Act 1989 (Qld) or the Mining Act 1971 (SA), petroleum as defined in the Petroleum Act 1923 (Qld), the Petroleum and Gas (Production and Safety) Act 2004 (Qld) and the Petroleum and Geothermal Energy Act 2000 (SA);
(e) Natural Water Resources means:
(i) water which flows, whether permanently or intermittently, within a river, creek, or stream;
(ii) any natural collection of water, whether permanent or intermittent; and
(iii) water from an underground water source;
(f) "laws of the State of South Australia, the State of Queensland and the Commonwealth" means the common law and laws of the State of South Australia, the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments and local laws;
(g) "Reserves" means reserves that are dedicated or taken to be reserves under the Land Act 1994 (Qld);
(h) in the event of an inconsistency between a description of an area in a schedule and the depiction of that area on the map in Schedule 2, the written description shall prevail.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Schedules
SCHEDULE 1 - DETERMINATION AREA
The Determination Area comprises the land and waters described below and as depicted in the maps contained in Schedule 2.
AREA A - EXTERNAL BOUNDARY OF THE SOUTH AUSTRALIAN DETERMINATION AREA
That part of the Determination Area which is located within the State of South Australia comprises all land and waters bounded by the following line:
Commencing at a point being the intersection of the borders between Queensland, South Australia and Northern Territory; then easterly along the northern border of South Australia (being the southern border of Queensland), through Longitude 139.780453 East (being the eastern-most point of the Determination Area within Queensland), to its intersection with Longitude 140.001231 East; then in straight lines connecting the following coordinate points:
Longitude (East) Latitude (South)
139.900728 26.147648
139.800759 26.315911
139.569764 26.693364
139.367244 26.953967
138.719232 27.787831
138.102550 27.864510
[2]
the latter point being a point on the centreline of Warburton River; generally north-westerly and south-westerly along the said centreline of Warburton River, generally being straight lines connecting the following coordinate points:
the later coordinate being the intersection of the said centreline of Warburton River with the centreline of an un-named creek; then generally north-westerly along the centreline of the said un-named creek, generally being straight lines connecting the following coordinate points:
Longitude (East) Latitude (South)
137.250500 27.862530
137.250630 27.861060
137.249610 27.858920
137.249620 27.858350
137.249350 27.857680
137.248730 27.856550
137.247580 27.855530
137.247060 27.855190
137.246050 27.854860
137.245440 27.854260
137.244780 27.853490
137.244110 27.852350
137.243520 27.850600
137.243340 27.849160
Then southerly to the centreline of the Eyre Developmental Road at Latitude 25.453526 South, then south-easterly to Woolmarlie Tank at Longitude 139.548430 East, Latitude 25.506101 South, then south-westerly to Annuary Waterhole at Longitude 139.499580 East, Latitude 25.688832 South; then south-easterly to Louies Hill at Longitude 139.530186 East, Latitude 25.750357 South; then generally south-easterly in straight lines connecting the following coordinate points:
Longitude (East) Latitude (South)
139.587822 25.784827
139.608415 25.807565
139.632440 25.829874
139.646598 25.864625
139.670194 25.895515
139.688213 25.919540
139.707090 25.926833
139.728970 25.957294
139.744844 25.968019
PART B - QUEENSLAND
Subject to Orders 10, 11, 12, 14, 15, 16 and 17 non-exclusive native title exists, as described in Order 8, in respect of all of the land and waters described in the following table:
Area Description
Lot 14 on SP226890 formerly part of Lot 14 balance on RB19
Lot 15 on RB20
Lot 16 on RB20
Lot 17 on RB20
Lot 1 on CP848262
That part of Lot 1 on NPW423 which falls within the Queensland External Boundary
Lot 3 on SP197784 formerly part of Lot 20 on CP848263
That part of Lot 20 on SP255335 which falls within the Queensland External Boundary, and formerly described as:
a) That part of Lot 20 on CP848263 which falls within the Queensland External Boundary;
b) that part of Lot 3 on RB7 delineated by stations Q-4-A-Q on SP120216; and
c) that part of Lot 4 balance on G25073 exclusive of Lot 1 on SP120216 and Lot 70 on OL004.
Lot 18 on SP226890 formerly described as:
a) that part of Lot 3 on RB7 delineated by stations B-C-H-3-4-B on SP120216; and
b) that part of Lot 4 balance on G25073.
Lot 70 on SP123581 formerly described as Lot 70 on OL004
That part of Lot 5220 on PH1780 which falls within the Queensland External Boundary
That part of Lot 1 on CP910370 formerly Lot 5308 on PH1673 which falls within the Queensland External Boundary
That part of Lot 5331 on SP255336 formerly Lot 5331 on PH1781 which falls within the Queensland External Boundary
That part of the Diamantina River located between lot 70 on SP123581 and lot 20 on SP255335.
[7]
PART C - QUEENSLAND (Town Areas)
Subject to Orders 10, 11, 12, 14, 15, 16 and 17 non-exclusive native title exists, as described in Order 9, in respect of all of the land and waters described in the following table:
Area Description
Lot 1 on RB21
That part of Lot 4 on CP847849 exclusive of former Florence Street and Lots 603-610 Sec VI on plan RB17
[8]
SCHEDULE 4 - Areas where native title has been extinguished
1 Native title rights have been extinguished in the areas on which any Public Work, as defined in s 253 of the Native Title Act (including the land defined in s 251D of the Native Title Act) which is or was constructed, established or situated prior to 23 December 1996, or commenced to be constructed or established on or before that date.
2 In respect of Area A of the Determination Area:
(a) Public Works constructed, established or situated after 23 December 1996 have had such effect as has resulted from Part 2, Division 3 of the NT Act or as agreed pursuant to the Wangkangurru Yarluyandi Claim Settlement ILUA (SA);
(b) native title rights have been extinguished over all roads which have been delineated in a public map pursuant to s 5(d)(II) of the Crown Lands Act 1929 (SA) or s 70(3) or (4) of the Crown Land Management Act 2009 (SA) or which have otherwise been validly established pursuant to South Australian Statute or common law as shown in brown on the maps in Schedule 2; and
(c) native title has been extinguished over the following parcels:
DCDBID HUNDRED TITLE REFERENCE RESERVE NAME
H830600S48 OH(POOLOWANNA) CR5435/455 SIMPSON DESERT CONSERVATION PARK GAZ 14/12/1967
D35808A218 OH(GASON) CR5236/280 Digital Radio Conc Res GAZ 26/9/1996 ('Sugar Bunny')
D35811A217 OH(GASON) CR5392/538 Digital Radio Conc Res GAZ 26/9/1996 ('Booloo Maree')
[9]
5 In respect of Area B of the Determination Area native title does not exist in respect of all of the land and waters described in the following table:
Area Description
Lot 15 on SP226890 formerly part of Lot 14 balance on RB19
Lot 16 on SP226890 formerly part of Lot 14 balance on RB19
Lot 3 on SP148077 formerly part of Lot 14 balance on RB19
Lot 17 on SP226890 formerly part of Lot 4 balance on G25073
Lot 1 on CP 865515
Lot 1 on SP148077
Lot 8 on RB1
Lot 30 on SP112844
Lot 3 on CP847849
Lot 2 on SP152751
Lot 2 on SP107134 formerly part of Lot 14 balance on RB19
Lot 7 on SP107134 formerly part of Lot 14 balance on RB19
Lot 8 on SP107134 formerly part of Lot 14 balance on RB19
Lot 9 on SP107134 formerly part of Lot 14 balance on RB19
Lot 10 on SP107134 formerly part of Lot 14 balance on RB19
Lot 11 on SP107134 formerly part of Lot 14 balance on RB19
Lot 12 on SP107134 formerly part of Lot 14 balance on RB19
Lot 13 on SP107134 formerly part of Lot 14 balance on RB19
Lot 14 on SP107134 formerly part of Lot 14 balance on RB19
Lot 15 on SP107134 formerly part of Lot 14 balance on RB19
Lot 16 on SP107134 formerly part of Lot 14 balance on RB19
Lot 17 on SP107134 formerly part of Lot 14 balance on RB19
Lot 18 on SP107134 formerly part of Lot 14 balance on RB19
Lot 19 on SP107134 formerly part of Lot 14 balance on RB19
Lot 20 on SP107134 formerly part of Lot 14 balance on RB19
Lot 21 on SP107134 formerly part of Lot 14 balance on RB19
Lot 22 on SP107134 formerly part of Lot 14 balance on RB19
Lot 23 on SP107134 formerly part of Lot 14 balance on RB19
Lot 24 on SP107134 formerly part of Lot 14 balance on RB19
Lot 25 on SP107134 formerly part of Lot 14 balance on RB19
Lot 26 on SP107134 formerly part of Lot 14 balance on RB19
Lot 27 on SP107134 formerly part of Lot 14 balance on RB19
Lot 1 on SP197783 formerly part of Lot 14 balance on RB19
Lot 3 on SP197783 formerly part of Lot 14 balance on RB19
Lot 4 on SP197783 formerly part of Lot 14 balance on RB19
Lot 5 on SP197783 formerly part of Lot 14 balance on RB19
Lot 6 on SP197783 formerly part of Lot 14 balance on RB19
Lot 7 on SP197783 formerly part of Lot 14 balance on RB19
Lot 1 on SP110060 formerly part of Lot 14 balance on RB19
Lot 2 on SP110060 formerly part of Lot 14 balance on RB19
Lot 3 on SP110060 formerly part of Lot 14 balance on RB19
Lot 4 on SP110060 formerly part of Lot 14 balance on RB19
Lot 5 on SP110060 formerly part of Lot 14 balance on RB19
Lot 6 on SP110060 formerly part of Lot 14 balance on RB19
Lot 7 on SP110060 formerly part of Lot 14 balance on RB19
Lot 8 on SP110060 formerly part of Lot 14 balance on RB19
Lot 9 on SP110060 formerly part of Lot 14 balance on RB19
Lot 10 on SP110060 formerly part of Lot 14 balance on RB19
Lot 11 on SP110060 formerly part of Lot 14 balance on RB19
Lot 13 on SP110060 formerly part of Lot 14 balance on RB19
Lot 14 on SP110060 formerly part of Lot 14 balance on RB19
Lot 20 on SP110060 formerly part of Lot 9 on RB14
Lot 21 on SP110060 formerly part of Lot 9 on RB14
Lot 22 on SP110060 formerly part of Lot 14 balance on RB19
Lot 23 on SP110060 formerly part of Lot 14 balance on RB19
Lot 24 on SP110060 formerly part of Lot 14 balance on RB19
Lot 27 on SP110060 formerly part of Lot 14 balance on RB19
Lot 28 on SP110060 formerly part of Lot 14 balance on RB19
Lot 29 on SP110060 formerly part of Lot 14 balance on RB19
Lot 30 on SP110060 formerly part of Lot 14 balance on RB19
Lot 31 on SP110060 formerly part of Lot 14 balance on RB19
Lot 32 on SP110060 formerly part of Lot 14 balance on RB19
Lot 33 on SP110060 formerly part of Lot 14 balance on RB19
Lot 34 on SP110060 formerly part of Lot 14 balance on RB19
Lot 35 on SP110060 formerly part of Lot 14 balance on RB19
Lot 36 on SP110060 formerly part of Lot 14 balance on RB19
Lot 37 on SP110060 formerly part of Lot 14 balance on RB19
Lot 38 on SP110060 formerly part of Lot 14 balance on RB19
Lot 39 on SP110060 formerly part of Lot 14 balance on RB19
Lot 40 on SP110060 formerly part of Lot 14 balance on RB19
Lot 41 on SP110060 formerly part of Lot 14 balance on RB19
Lot 42 on SP110060 formerly part of Lot 14 balance on RB19
Lot 43 on SP110060 formerly part of Lot 14 balance on RB19
Lot 44 on SP110060 formerly part of Lot 14 balance on RB19
Lot 45 on SP110060 formerly part of Lot 14 balance on RB19
Lot 46 on SP110060 formerly part of Lot 14 balance on RB19
Lot 47 on SP110060 formerly part of Lot 14 balance on RB19
Lot 48 on SP110060 formerly part of Lot 14 balance on RB19
Lot 49 on SP110060 formerly part of Lot 14 balance on RB19
Lot 50 on SP110060 formerly part of Lot 14 balance on RB19
Lot 51 on SP110060 formerly part of Lot 14 balance on RB19
Lot 52 on SP110060 formerly part of Lot 14 balance on RB19
Lot 53 on SP110060 formerly part of Lot 14 balance on RB19
Lot 54 on SP110060 formerly part of Lot 14 balance on RB19
Lot 12 on SP152770 formerly part of Lot 14 balance on RB19
Lot 15 on SP152770 formerly part of Lot 14 balance on RB19
Lot 16 on SP152770 formerly part of Lot 14 balance on RB19
Lot 17 on SP152770 formerly part of Lot 9 on RB14
Lot 18 on SP152770 formerly part of Lot 9 on RB14
Lot 19 on SP152770 formerly part of Lot 14 balance on RB19
Lot 55 on SP152770 formerly part of Lot 14 balance on RB19
Lot 1 on SP232658 formerly part of Lot 14 balance on RB19
Lot 1 on SP120230
[10]
SCHEDULE 5 - Other Interests
The nature and extent of the Other Interests in relation to the Native Title Land are the following as they exist as at the date of determination:
PART A - GENERAL
1 The rights and interests of all parties to the Indigenous Land Use Agreements listed in Schedule 6 and Schedule 7 arising by reason of those agreements.
2 The rights and interests of Telstra Corporation Limited (or its corporate successor):
(a) as the owner or operator of telecommunications facilities on the Native Title Lands;
(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including rights:
(i) to inspect land;
(ii) to install and operate existing and new telecommunications facilities;
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunications facilities;
(iv) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Native Title Land in performance of their duties; and
(c) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Native Title Land.
PART B - SOUTH AUSTRALIA
3 The interests created by the following pastoral leases:
Lease Name Pastoral Lease Number Crown Lease Number
Macumba 2528 Volume 1607 Folio 55
Kallakoopah West 2534 Volume 1628 Folio 21
Kalamurina 2412 Volume 1323 Folio 22
Cowarie 2389 Volume 1311 Folio 41
Koodnanie 2414 Volume 1342 Folio 26
Kanowana 2386 Volume 1323 Folio 48
Goyder Lagoon 2385 Volume 1323 Folio 47
Clifton Hills 2387 Volume 1597 Folio 90
Andrewilla 2413 Volume 1323 Folio 33
Alton Downs 2390 Volume 1327 Folio 10
Pandie Pandie 2406 Volume 1350 Folio 18
Beckwith 2387A Volume 1597 Folio 91
[11]
4 The interests of the Crown in right of the State of South Australia;
5 In relation to the NPWA Reserve set out in Part A of Schedule 3:
(a) the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA);
(b) the rights and interests of the public to use and enjoy the NPWA Reserve consistent with the National Parks and Wildlife Act 1972 (SA); and
(c) the interests of persons to whom valid or validated rights have been granted under the National Parks and Wildlife Act 1972 (SA).
6 The interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia, or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power including, but not limited to, rights and interests granted or recognised pursuant to the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Mining Act 1971 (SA), Petroleum and Geothermal Energy Act 2000 (SA) and Opal Mining Act 1995 (SA), all as amended from time to time.
7 Rights or interests held by reason of the force and operation of the laws of the State of South Australia or of the Commonwealth.
8 The rights to access land by an employee or agent or instrumentality of the State of South Australia, the Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land.
9 The rights and interests of Permian Oil Pty Ltd (ACN 104 456 386) (Permian):
(a) as one of the holders of Petroleum Exploration Licences PEL 87 and PEL 424 ('Permian Exploration Licences') granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);
(b) as the owner or operator of flowlines and other infrastructure reasonably necessary for and incidental to the Permian Exploration Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);
(c) created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); and
(d) for the employees, agents or contractors of Permian to enter the Native Title Land to access the rights and interests of Permian and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Native Title Land in performance of their duties;
(e) of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.
10 The rights and interests of Stuart Petroleum Pty Ltd (ACN 059 146 226) (Stuart Petroleum):
(a) as the holders of Petroleum Exploration Licences PEL 288, PEL 289, PEL 290 and PEL 331 ("Stuart Petroleum Exploration Licences") granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);
(b) as the owner or operator of other infrastructure reasonably necessary for and incidental to the Stuart Petroleum Exploration Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);
(c) created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);
(d) for the employees, agents or contractors of Stuart Petroleum to enter the Native Title Land to access the rights and interests of Stuart Petroleum and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Native Title Land in performance of their duties; and
(e) of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.
11 The rights and interests of Victoria Oil Exploration (1977) Pty Ltd (ACN 008 898 431) (Victoria Oil):
(a) as one of the holders of Petroleum Exploration Licences PEL 87 and PEL 424 ("Victoria Oil Exploration Licences") granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);
(b) as the owner or operator of other infrastructure reasonably necessary for and incidental to the Victoria Oil Exploration Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);
(c) created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);
(d) for the employees, agents or contractors of Victoria Oil to enter the Native Title Land to access the rights and interests of Victoria Oil and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Native Title Land in performance of their duties; and
(e) of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.
PART C - QUEENSLAND
12 The rights and interests of the holders of the following:
(a) Pastoral Holding Term Lease 236411 comprising Lot 20 on SP 255335 and known as Roseberth;
(b) Pastoral Holding 4/5220 comprising Lot 5220 on PH1780 and known as Kamaran Downs;
(c) Pastoral Development Holding 4/5308 comprising Lot 1 on CP910370 and known as Glengyle; and
(d) Pastoral Development Holding 4/5331 comprising Lot 5331 on SP255336 and known as Adria Downs.
13 The rights and interests of the parties under the Memorandum of Understanding between the Wangkangurru/Yarluyandi Native Title Claim Group and the Wangkamahdla/Wangkamanha People dated 20 February 2013 (attached as Annexure A to this Schedule).
14 The rights and interests of the State of Queensland and the interests of any permittees, licensees or authorities pursuant to the Nature Conservation Act 1992 (Qld) and subordinate legislation relating to the management of Lot 1 on NPW423 (Munga Thirri National Park).
15 The rights and interests of the State of Queensland and the Diamantina Shire Council to access, use, operate, maintain and control the dedicated roads in that part of the Native Title Land located in the State of Queensland, and the rights and interests of the public to use and access the roads.
16 The rights and interests of the Diamantina Shire Council for that part of the Native Title Land located in the State of Queensland and within its Local Government Area, including:
(a) its powers, functions, responsibilities and jurisdiction under a Local Government Act;
(b) its rights and interests under any interest in land or waters within the Determination Area including under any lease, licence, access agreement, easement or reserve in the Determination Area;
(c) the rights to use, operate, maintain, replace, restore, remediate, repair and otherwise exercise all other rights as owners and operators of infrastructure, structures, earthworks, access works, facilities and other improvements within the Determination Area;
(d) the rights under any agreements between Council and third parties which relate to land or water in the Determination Area;
(e) the rights of its employees, agents and contractors to enter upon the Determination Area for the purpose of performing their powers and responsibilities under paragraphs (a) to (d); and
(f) the rights and interests of the State of Queensland in Reserves, the rights and interests of the trustees of those Reserves and of the persons entitled to access and use those Reserves for the respective purpose for which they are reserve.
17 The rights and interests of Ergon Energy Corporation Limited (ACN 087 646 062):
(a) as the owner and operator of any "works" as that term is defined in the Electricity Act 1994 (Qld) within the Native Title Land;
(b) as a distribution entity and holder of a distribution authority under the Electricity Act 1994 (Qld);
(c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld); including:
(i) rights in relation to any agreement relating to the Native Title Land existing or entered into before the date on which these Orders are made;
(ii) rights to enter the Native Title Land by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and
(iii) to inspect, maintain and manage any works in the Native Title Land.
18 So far as confirmed pursuant to s 212(2) of the NT Act and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of the Determination, any existing public access to, and enjoyment of, the following places in that part of the Native Title Land located in the State of Queensland:
(a) Waterways;
(b) Beds and banks of waterways;
(c) Stock routes; and
(d) Areas that were public places at the end of 31 December 1993.
19 The rights and interests of members of the public arising under the common law, including but not limited to the following:
(a) the public right to fish.
20 Any other rights and interests:
(a) Held by the State of Queensland or Commonwealth of Australia; or
(b) Existing by reason of the force and operation of the Laws of the State of Queensland or the Commonwealth of Australia.
ANNEXURE A TO SCHEDULE 5 - CONFIDENTIAL (document not included in orders)
AGREEMENT dated the 20th day of February 2013
BETWEEN
THE WANGKANGURRU/YARLUYANDI NATIVE TITLE CLAIM GROUP by ARTHUR AH CHEE, BRENDA SHIELDS, HAYDYN BROMLEY, SHARON LUCAS AND LINDA CROMBIE (deceased)
AND
THE WANGAMADLA/WANGKAMANHA PEOPLE
Note: This confidential document is not to be inspected without the leave of the Court.
SCHEDULE 6 - Details of Indigenous Land Use Agreements in the Determination Area - South Australia
A. PROPOSED ILUAS
Wangkangurru Yarluyandi Native Title Claim Settlement Indigenous Land Use Agreement (Body Corporate Agreement)
Wangkangurru Yarluyandi Parks (Simpson Desert Regional Reserve and Simpson Desert Conservation Park) Indigenous Land Use Agreement (Body Corporate Agreement)
Wangkangurru Yarluyandi Alton Downs Pastoral Indigenous Land Use Agreement
Wangkangurru Yarluyandi Clifton Hills Pastoral Indigenous Land Use Agreement
Wangkangurru Yarluyandi Cowarie Pastoral Indigenous Land Use Agreement
Wangkangurru Yarluyandi Kalamurina Pastoral Indigenous Land Use Agreement
Wangkangurru Yarluyandi Macumba Pastoral Indigenous Land Use Agreement
Wangkangurru Yarluyandi Pandie Pandie Pastoral Indigenous Land Use Agreement
B. PREVIOUSLY EXECUTED ILUA
Wangkangurru Yarluyandi Petroleum Conjunctive ILUA (Area Agreement) S12011/023 executed on 24/06/2011 Registered on 02/03/2012.
SCHEDULE 7 - Details of Indigenous Land Use Agreements in the Determination Area - QUEENSLAND
A. PROPOSED ILUAS
Arthur Ah Chee, Haydyn Bromley, Belinda Shields, Sharon Lucas, Raelene Hudson (Deceased) and Linda Crombie (deceased) on their own behalf and on behalf of the Wangkangurru/Yarluyandi People, Wangkangurru/Yarluyandi Aboriginal Corporation the State of Queensland, and Wangkangurru/Yarluyandi Aboriginal Corporation RNTBC as parties to the Munga Thirri National Park Protected Areas Indigenous Land Use Agreement (body corporate agreement), which was authorised on 16 August 2014 and executed by Arthur Ah Chee, Haydyn Bromley, Belinda Shields, Sharon Lucas and Raelene Hudson (Deceased) on their own behalf and on behalf of the Wangkangurru/Yarluyandi People , Wangkangurru/Yarluyandi Aboriginal Corporation and the State of Queensland and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the Registered Native Title Body Corporate.
B. PREVIOUSLY EXECUTED ILUAS
Arthur Ah Chee, Brenda Shields, Haydyn Bromley, Raelene Hudson (deceased), Sharon Lucas and Linda Crombie (deceased) on behalf of the Wangkangurru/Yarluyandi People and Ergon Energy Corporation (ACN 087 646 062) as parties to the Indigenous Land Use Agreement registered on 30 January 2013.
Arthur Ah Chee, Brenda Shields, Haydyn Bromley, Sharon Lucas, Linda Crombie (deceased) and Raelene Hudson (deceased) on behalf of the Wangkangurru/Yarluyandi People and Diamantina Shire Council as parties to the indigenous land use agreement registered on 10 January 2013.
SCHEDULE 8
No. SAD6016 of 1998
Federal Court of Australia
District Registry: South Australia
Division: General
Applicants
Second Applicant: Haydyn Bromley
Third Applicant: Linda Crombie (Deceased)
Fourth Applicant: Sharon Lucas
Fifth Applicant: Brenda Shields
Sixth Applicant: Raelene Hudson (deceased)
Respondents
Respondent: State of Queensland
Respondent: South Australian Native Title Services Ltd
Respondent: Diamantina Shire Council
Respondent: Australian Wildlife Conservancy
Respondent: Anthony William Brook
Respondent: David Brook
Respondent: Gary Francis Brook
Respondent: Jenna Louise Brook
Respondent: Karen Liana Brook
Respondent: Brooklands Pastoral Company Pty Ltd
Respondent: Broschul Pty Ltd
Respondent: John Gwynne Hughes
Respondent: Geoffrey Lyle Morton
Respondent: Ann Sharon Oldfield
Respondent: S Kidman & Co Ltd
Respondent: Charles Simpson
Respondent: Ergon Energy Corporation Limited
Respondent Permian Oil Pty Ltd
Respondent Victoria Oil and Exploration (1977) Pty Ltd
Respondent: South Australian Apiarists Association Inc
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION SAD 6016 of 1998
[12]
JUDGE: MANSFIELD J
DATE: 3 OCTOBER 2014
PLACE: PELICAN POINT
[13]
INTRODUCTION
1 This application is for the determination that native title should be recognised to exist and to have existed at least since European settlement over a very substantial area of land in the north east of South Australia and the south west of Queensland (the Determination Area). It is remote and extraordinary country. It was only in the mid-1870s that European settlement first made a presence in the area.
2 The area to be so recognised covers approximately 60,600 square km in the far north/north east of South Australia (the South Australian Determination Area) and approximately 19,000 square km in south western Queensland (the Queensland Determination Area). The South Australian Determination Area includes the Simpson Desert Conservation Park and the Simpson Desert Regional Reserve. Together, these reserves comprise approximately 36,000 square km with the remaining area predominantly comprising land held under pastoral lease.
3 The Simpson Desert is located within the driest region of the Australian continent and has an average rainfall of between 150 - 200 mm per year. It is a remote and arid landscape characterised by parallel sand dunes, salt pans and spinifex. The Desert is underlain by the Great Artesian Basin and there are some naturally occurring springs, as well as man-made bores, in the area. In some years the area can be subject to flooding due to tropical rainfall events, creating temporary lakes and waterholes. Temperatures in the area can range from freezing on winter mornings, with summer temperatures reaching up to 50°C.
4 The Queensland Determination Area, in the south western corner of that State, includes some 10,000 square kilometres of the Munga-Thirri National Park with its remarkable sand dunes, and the township of Birdsville. The Park is some 75-80 km west of Birdsville, which is also within the Queensland Determination Area, alongside the Diamantina River and so the area includes part of what is called the Channel Country of central and southern west Queensland.
5 The Court is asked to make orders that the Wangkangurru/Yarluyandi People were and are the traditional owners of the Determination Area. It is important to emphasise the nature of the orders sought. The Court is not granting the land to those people. It is declaring that the Wangkangurru/Yarluyandi People have and always have had the traditional rights and interests in the Determination Area.
6 The orders are made under the Native Title Act 1993 (Cth) (the NT Act). On behalf of all Australian people, it recognised in its Preamble that Aboriginal people inhabited this country for many many years prior to European settlement and were progressively dispossessed of their lands. The Preamble records that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the NT Act to be passed to facilitate the recognition by our shared legal system of the native title rights and interests in land which existed at the time of European settlement.
7 The determination is made with the consent of the State of South Australia and of the State of Queensland and all of the respondents whose interests might be affected by the Orders to be made, including the Diamantina Shire Council, and those who have pastoral or mining interests in any part of the Determination Area. The consent of the two States indicates that the whole of the Australian community shares in, and supports, recognising that status of the Wangkangurru/Yarluyandi People.
[14]
THE LEGISLATIVE REQUIREMENTS
8 Section 223 of the NT Act defines native title as:
(1) … the communal, group or individual rights and interests of Aboriginal peoples … in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples …; and
(b) the Aboriginal peoples …, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
9 Those requirements have been much discussed. Where, as here, the Court is asked to make a determination by consent using its powers under s 87 of the NT Act, the means by which the Court can be satisfied of the elements of the definition of native title is a straightforward one.
10 In Starkey v State of South Australia [2014] FCA 924, Allsop CJ referred extensively to the remarks of Keane CJ in King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1387, especially at [19]-[22]. Chief Justice Allsop said at [20]-[21]:
… Keane CJ affirmed the practice of the Court to rely upon the processes of the relevant State or Territory about the requirements of s 223 being met to be satisfied that the making of the agreed orders is appropriate. That is because each State and Territory has developed a protocol or procedure by which it determines whether native title (as defined in s 223) has been established. As Keane CJ said, that is because the relevant State or Territory acts in the public interest and as the public guardian in doing so. His Honour noted that the State or Territory has access to anthropological, and where appropriate, archaeological, historical and linguistic expertise. It has a legal team to manage and supervise the testing as to the existence of native title in the claimant group. Consequently, the Court must, of course, preserve to itself the question whether it is satisfied that the proposed orders are appropriate in the circumstances of each particular application, generally the Court reaches the required satisfaction by reliance upon those processes. They are commonly explained in the joint submissions of the parties in support of the orders agreed. I have had the benefit of such joint submissions in this instance.
That approach reflects the comments of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37] that:
The Act [Native Title Act] is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.
In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.
11 Hence, as contemplated by s 87, the Court may make the orders proposed by consent and without a full hearing, provided that:
(1) the period specified in the notice given under s 66 of the NT Act has ended and there is an agreement on the terms of a proposed determination of native title in relation to the Determination Area: s 87(1)(a) and (b);
(2) the terms of the proposed determination are in writing and are signed by or on behalf of each of the relevant parties: (s 87(1)(b);
(3) the Court is satisfied that an order in, or consistent with, the terms of the proposed determination would be within its power: s 87(1)(c);
(4) the Court considers that it would be appropriate to make the orders sought: s 87(1A) and (2); and
(5) the orders sought comply with s 94A of the NT Act, which deals with the requirements of native title determination orders as specified in s 225 of the NT Act.
These reasons for judgment explain why the Court is satisfied of those matters.
12 In addition, the authorities indicate that the Court should have regard to the following before making determinations of native title by consent:
(1) whether all parties likely to be affected by an order have had independent and competent legal representation;
(2) whether the rights and interests that are to be declared in the determination are recognisable by the law of Australia or the State in which the land is situated; and
(3) that all of the requirements of the NT Act are complied with.
Again, these reasons for judgment explain why the Court is satisfied of those matters.
13 It is important to address those matters because the recognition given by the orders to be made will apply not just between the parties who have participated in the proceeding, but to all the people of Australia: Munn (for and on behalf of the Guggari People) v The State of Queensland (2001) 115 FCR 109 (Munn v Queensland).
14 The formal requirements referred to are clearly satisfied. The period of notice imposed under s 66 has clearly elapsed. A signed copy of the agreed orders has been filed with the Court. No objection to the proposed orders has been given.
15 There are more substantive requirements imposed by s 87(1A)(a) and (2) which require that, for the Court to make the proposed consent determination of native title without a hearing, the Court must be satisfied that it would be appropriate to do so. In addition, because the orders seek a determination of native title, they must comply with s 94A of the NT Act which requires the proposed orders to set out details of the matters mentioned in s 225 of the NT Act.
16 Section 225 defines a determination of native title as:
A determination…whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
[15]
CONSIDERATION
17 In Munn v Queensland, Emmett J at [29]-[30] expressed the view that the Court needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the Applicant's evidence and has considered the interests of the community generally.
18 The Court has, in many other cases determined pursuant to s 87 of the NT Act, been prepared to rely upon the processes of the relevant state or territory government about the requirements of s 223 being met to be satisfied that the making of the agreed orders is appropriate: see eg Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285; Dodd v State of South Australia [2012] FCA 519; Lovett (on behalf of the Gunditjamara People v Victoria [2007] FCA 474; Yungngora People v Western Australia [2007] FCA 588; King v Northern Territory [2011] FCA 582; Nelson v Northern Territory [2010] FCA 1343.
19 The State of South Australia has developed a rigorous process for assessing the evidence in native title claims against the requirements of the NT Act. This process is outlined in the State's published policy document Consent Determinations in South Australia: A Guide to Preparing Native Title Reports (CD Policy). The State of South Australia has, in accordance with its published CD Policy, conducted a lengthy and rigorous assessment of the evidence provided in support of this claim where it falls within this State. It has assessed anthropological and historical evidence submitted by the claimants, and has made its own independent inquiries.
20 The State of Queensland was provided with evidence in support of the Wangkangurru/Yarluyandi Application by the applicant and also had regard to other material available to it on a confidential basis. The evidence considered by the State includes:
(a) the connection report and genealogies prepared by Dr Kingsley Palmer and Ms Lyn Coad on behalf of the applicant, dated September 2011 (the Palmer/Coad Report);
(b) the transcript of proceedings and Report of the Land Tribunal in relation to Aboriginal Land Claim - Wangkangurru (Simpson Desert) Land Claim No 156 dated December 1994; and
(c) the research report prepared by Dr Rita Farrell for the National Native Title Tribunal, dated February 2008 (the Material).
21 The Material was assessed by the State of Queensland for the purpose of determining whether a credible basis for the Wangkangurru/Yarluyandi Application existed and whether the requirements of s 223(1) of the NT Act were met. That assessment was carried out on behalf of the State of Queensland by a senior anthropologist employed by Aboriginal and Torre Strait Islander Land Services, Queensland Department of Natural Resources and Mines, and a Principal Lawyer employed by Crown Law. Concerns held by the State of Queensland following its initial assessment of the Material were addressed in a conference with Dr Kingsley Palmer held in Adelaide on 11 December 2012, followed by an exchange of correspondence.
22 That careful process has led to the State of Queensland being satisfied that the requirements of s 223(1) of the NT Act have been met, and to its consent to a determination of native title pursuant to s 87 of the NT Act.
23 That careful and thorough process, together with the level of satisfaction that both States have reached on the relevant issues, and their consent to the proposed determination, is explained by reference to the available evidence.
24 I accept that material has the qualities and content referred to in the submissions. It enables the Court to be satisfied that it has the power to make the orders sought and that it is appropriate to do so. I adopt the submissions for the following section of these reasons, identifying why the elements of s 223 of the NT Act are satisfied.
25 The Palmer/Coad Report concluded that the contemporary society is defined by membership of the Wangkangurru and/or Yarluyandi language group(s). Membership of the language group is by way of cognatic filiation and accordingly, because there may be more than one line of descent, language group identity is not necessarily exclusive. For example, an individual could claim both a Wangkangurru and a Yarluyandi language group identity.
26 While filiation is the principal requirement for the assertion of rights to this country, it is only considered to provide potential rights. The realisation and exercise of rights to country is conditional upon the possession of knowledge of the country and its spiritual and mythical propensities and qualities (mura).
27 Birth on country can bolster claimed rights but is not sufficient in and of itself to give rise to rights to country in the absence of a filiative link. Birthplace, however, is considered to be of special significance, providing grounds for asserting a special attachment to a particular area within one's broader ancestral country.
28 Ethnographic literature makes reference to the Wangkangurru and Yarluyandi, variously spelled, within the claim area at the time of the first sustained contact with Europeans in the area, being the mid-1870s. The early ethnographic literature also identified other groups within the claim area and its surrounds (ten groups in total were identified from the study of the early ethnography). The Palmer/Coad Report considered that this large number of named groups indicates they are likely to have been non-exclusive local identifying names and not "indicative of discrete or autonomous landed entities". Given the number of names, some groups may have been quite small and some names, such as Wangkangurru, may have been of general application, perhaps being the name of the language members of the group commonly spoke. In their opinion, these groups were likely to have been inter-dependent, sharing cultural beliefs and practices and exercising rights together over diverse areas. The Applicant's experts concluded that, notwithstanding the reference to a number of groups in the early ethnographic literature, at the time of sovereignty there were likely to have been only four "language groups" in the area, namely the Wangkangurru, the Yarluyandi, the Ngameni and the Karanguru.
29 Based on evidence from early accounts (views endorsed by Luise Hercus and other later writers), the Wangkangurru, the Yarluyandi, the Ngamani and the Karanguru can be understood as comprising a single society or community at sovereignty.
30 Only two of those four groups remain. It is considered that the Ngamani and the Karanguru have either died out or, more likely, were absorbed by the two surviving groups. The process of succession by the surviving groups to the country of the Ngamani and Karanguru was, according to the experts, a result of the close cultural ties and the shared laws and customs of those four groups.
31 While the State of South Australia's experts, Drs Fergie and Lucas, approached the evidence in a slightly different fashion to Dr Palmer, they did not ultimately dispute the conclusion that the contemporary claimants are the relevant society for native title purposes. In their opinion, this conclusion was strongly supported by the genealogical data collected in the Palmer/Coad Report and prepared by Ms Coad which demonstrates a complex web of inter-relatedness and intermarriage amongst those who were evidenced in the claim area at or around the time of first contact.
32 I am also satisfied that the proposed determination describes, in accordance with the evidence, those persons who are members of the native title holding group, and that the description is sufficient to identify the native title holding group, and its society, and satisfies the requirements of the NT Act.
33 The date of acquisition of sovereignty for this area was 1788. However, as noted above, the first period of sustained contact with Europeans in the Determination Area was not until the mid-1870s. The evidence supports the conclusion that, at that time, the Wangkangurru, Yarluyandi, Ngamani and Karanguru were in occupation of the Determination Area.
34 The evidence also supports the view that the Applicants are the descendants of those in possession of the country at the date of effective sovereignty.
35 The continued existence and vitality of laws and customs governing membership and rights to country of the native title holding group is an important requirement. A key aspect of that identity is membership of the Wangkangurru and/or Yarluyandi language group through descent. Early ethnographic literature and subsequent material by Luise Hercus, who undertook considerable linguistic studies in the claim area from the 1970s, suggests that rights to country were obtained through succession to the mythology relevant to locations (mura) predominantly by patrilineal descent, although inheritance of Mardu (totemic identity giving rise to secondary rights to that country connected to the Mardu totem) was matrilineal.
36 The Applicant's experts consider that at the time of sovereignty those who occupied the area recognised a system of named, exogamous moieties. There were two moieties: matari and kararu. An inherited totem was also associated with the moiety system.
37 Based on evidence gathered, the Applicant's experts concluded that the moiety system is no longer part of contemporary practice. The evidence provided suggests there is still knowledge of the totem system, and certain rules are still adhered to (for example that you do not eat your totem) although it seems there is now some element of choice with regard to inheritance of the totem. The Palmer/Coad Report concludes that, although the relationship between moiety and totem is no longer part of contemporary practice and there have been some changes in the manner of totemic acquisition, totemic relationships still play an important part in the claim group's assertion and articulation of relationships with the natural world.
38 The evidence suggests that amongst the contemporary claimant group there has been a shift away from a system of rights to land obtained through patrifilial descent to a system of cognatic filiation. The experts agreed that this shift is firmly rooted in the customary system of traditional law and custom.
39 While some of the detail of the mythology that would have been present at sovereignty has been lost, there was evidence of individuals with a detailed knowledge of narratives and their associated places. Many of the claimants consider that the mythic beings, or mura, have a contemporary reality. The Palmer/Coad Report concludes that knowledge continues to be of central importance to the claimants and that this is based on customary principles. It concluded that kinship terms recorded in the early ethnography are comparable with those Wangkangurru kin names recorded by Hercus, and that a large number of Wangkangurru kin terms are recalled by the claimants.
40 The Palmer/Coad Report also summarises records in the early ethnography relating to ritual practices including rights of passage, corroboree and increase rituals. However, while it records details of two older claimants who underwent initiation rituals in their youth, ritual practices associated with initiation and rites of passage are no longer performed or part of contemporary Wangkangurru/Yarluyandi practice. Similarly, while older claimants retain some memory of "travelling rituals" or corroborees, they no longer form part of contemporary practice. There is contemporary evidence of burial and mortuary practices consistent with those recorded in early ethnography including, among other things, accounts of placing sticks and logs over graves and avoiding mention of the deceased's name.
41 The Palmer/Coad Report provides evidence of knowledge and use of natural resources across the claim area which are accepted as constituting a body of customary knowledge. The evidence supports the conclusion that this knowledge has been learnt by the claimants from their parents, grandparents and elders, and as such demonstrates a continuous process of transmission of knowledge which one can readily infer has continued from sovereignty.
42 Consequently, despite some cultural losses that have occurred since sovereignty, there remains a body of traditional law and custom sufficient for a consent determination that has had continued existence and vitality and that their observance has continued "substantially uninterrupted" since sovereignty.
43 The evidence is that there have been significant demographic changes in the claim area following European settlement. The Simpson Desert heartlands were no longer inhabited on a permanent basis after about 1900 and there was a further movement of people away from cattle stations and towards towns in the 1960s. Nevertheless, connection to their country is retained by contemporary claimants through the continued practice of laws and customs related to "ownership" of mura and rights to country deriving from that knowledge. There is evidence of continued occupation and use of the claim area by the members of the claim group, as well as knowledge of the claim area and its resources. There is evidence of duties to care for country, including places associated with mura and mikiri (desert wells). Evidence was provided by the claimants identifying several mikiri sites and other significant sites. While evidence of contemporary connection to the central Simpson Desert region was slight, it is likely that even at the time of sovereignty the area would only have been sporadically visited and use was likely to have been limited largely to areas in which water was available from mikiri.
44 It is accepted that the continued acknowledgement and observance of traditional laws and customs by this claim group relating to locations only infrequently visited is sufficient to sustain a spiritual relationship with the land and therefore maintain rights in the whole area. Consequently, it is appropriate to accept for the purposes of a consent determination that members of the native title claim group have, by their laws and customs, a connection to the country claimed.
45 The rights and interests to be recognised are set out at Order 8 of the proposed determination. They are consistent with the rights and interests that would have been observed traditionally. They are also consistent with rights recognised by the Federal Court elsewhere in South Australia.
46 The informants to the Palmer/Coad Report explained that they consider they have certain rights which they can freely exercise over the claim area. The rights discussed included the rights to:
(1) visit, camp and stay;
(2) make a fire ;
(3) gather bush foods;
(4) hunt for meat including goanna, kangaroo and rabbit;
(5) fish and take yabbies and crabs;
(6) take seeds;
(7) take gum;
(8) cook;
(9) collect ochre; and
(10) practice cultural activities.
47 The Palmer/Coad Report provides evidence of continued knowledge of bush and other resources of the claim area together with evidence of their contemporary utilisation. It also provides evidence that this knowledge has been transmitted to the current generation of claimants from previous generations.
48 It also provided evidence of the conduct of ceremonies and cultural activities on the claim area and the transmission of knowledge regarding matters of cultural and religious significance. Evidence was also provided of mortuary practices and of grave sites on the claim area.
49 Consequently, it is appropriate to proceed on the basis that the native title rights and interests claimed arise from the claimants' traditional laws and customs and that they have evolved from the native title rights and interests as they were likely to have been at sovereignty.
50 Section 225 of the NT Act specifies what the proposed determination must include.
51 It clearly describes the external boundaries of the Determination Area, and sets out with particularity those areas where native title exists (Native Title Land) (Order 4), and those areas within the Determination Area where native title is extinguished (Order 5).
52 For the purpose of s 225(a) of the NT Act, Order 7 defines the group of native title holders and the criteria by which they have group membership.
53 For the purpose of s 225(b) of the NT Act, Order 8 sets out the nature and extent of the native title rights and interests in the Determination Area and Orders 11 to 15 set out the general limitations on their exercise.
54 For the purpose of s 225(c) of the NT Act, Order 16 of the proposed determination sets out the nature and extent of other interests in the Native Title Land. That has been informed by tenure searches undertaken and by input from other respondent parties to the claim. There has been ample opportunity for any other interest holders in the area to identify themselves and join as parties to the claim. These tenure searches have not identified any other relevant interest holders in the Determination Area.
55 For the purpose of s 225(d) of the NT Act, Order 17 describes the relationship between the native title rights in Order 8 and those other rights in Order 16.
56 For the purpose of s 225(e) of the NT Act the native title rights and interests recognised in the Determination are non-exclusive.
[16]
CONCLUSION
57 Agreement has been reached between the principal parties to these proceedings on the terms of the proposed determination and signed copies of the Agreement under s 87 of the NT Act have been filed with the Court. Signatories include the South Australian Native Title Services Ltd, who is the native title service provider for the Determination Area, the Diamantina Shire Council, Ergon Energy Corporation, the Australia Wildlife Conservancy and represented mining and pastoral interests.
58 The Wangkangurru Yarluyandi native title claim was filed with this Court on 21 August 1997 and was amended on 13 March 2009 and 8 October 2009. Full notification by the National Native Title Tribunal under s 66 of the NT Act (using tenure current at the time) closed on 7 May 2001.
59 All of the parties to the Determination have had independent and competent legal advice in the proceeding.
60 A full tenure history of the Determination Area has been obtained and assessed. All the parties with an interest in that portion of the claim which might affect them have been consulted. This has allowed the two States and the Applicants to agree those areas where native title has been extinguished by prior grant of tenure or activities and to record those areas with specificity in the proposed determination. These matters are recorded in Schedule 4 to the Orders to be made.
61 On the basis of all that material, in my view it is appropriate, and within its power, for the Court to make the orders proposed pursuant to s 87.
62 I note that immediately following the making of the Determination, the State of South Australia, the Applicant and the nominated native title holding body will execute the Wangkangurru Yarluyandi Claim Settlement ILUA. The Wangkangurru Yarluyandi Claim Settlement ILUA provides for a process, as the alternative to Division 3 Part 2 of the NT Act, pursuant to which the State of South Australia may undertake future acts on Native Title Land in the Determination Area. In addition, the Wangkangurru Yarluyandi Settlement ILUA addresses the provision of compensation in full and final settlement of the existing compensation liability pursuant to the NT Act in relation to the South Australian Determination Area. This means that all issues relating to native title in the South Australian portion of the claim will be finally resolved.
63 I note further that a series of Indigenous Land Use Agreements as listed in Schedule 6 to the proposed determination are to be executed at the same time, relating to the South Australian section of the Determination Area.
64 There are also a series of proposed Indigenous Land Use Agreements as described in Schedule 7 to the proposed determination to be executed in due course in relation to the Queensland Determination Area: see Orders 16 and 17, Schedule 5 Part A Clause 1.
65 In accordance with ss 55 and 56 of the NT Act, Order 19 determines that the native title hereby recognised is to be held in trust, and Order 20 identifies the prescribed body corporate for the purposes of s 57(2) of the NT Act.
66 For the above reasons, the Court should and does give effect to the agreement of the parties. Accordingly, the Court makes a determination of native title in favour of the Wangkangurru/Yarluyandi People in the agreed terms.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Parties
Applicant/Plaintiff:
Ah Chee
Respondent/Defendant:
State of South Australia
Legislation Cited (29)
Petroleum and Geothermal Energy Act 2000(SA)
Natural Resources Management Act 2004(SA)
(Qld), the Petroleum and Gas (Production and Safety) Act 2004(Qld)
Crown Lands Act 1929(SA)
(Cth), the Telecommunications Act 1975(Cth)
(Cth), the Australian Telecommunications Corporation Act 1989(Cth)
(Cth), the Telecommunications Act 1991(Cth)
(SA), Crown Lands Act 1929(SA)
(SA), Mining Act 1971(SA)
(SA), Petroleum and Geothermal Energy Act 2000(SA)