Branson on behalf of Ngadjuri Nation #2 Native Title Claim v State of South Australia

Federal Court of Australia|2023-07-06|Before: Stewart J

Introduction 1 By orders made today with the consent of the parties, a determination of native title under the Native Title Act 1993 (Cth) is made on behalf of the Ngadjuri people in respect of an area of some 15,367 square kilometres in the mid-north of South Australia. 2 The parties to these proceedings propose agreed terms of a native title determination (proposed consent determination) in respect of the determination area, and propose a form of orders said to be appropriate to give effect to those terms. The proposed consent determination is supported by a minute of consent signed by each of the parties and joint submissions of the applicants and the State of South Australia. 3 The parties seek orders by consent under s 87 of the Native Title Act. I am satisfied that such orders should be made.

History of the proceeding 4 On 21 November 2011, the applicants lodged a native title claim in the Federal Court. That proceeding was numbered SAD304/2011 and was entitled 'Ngadjuri Nation No. 2 Native Title Claim'. The 'No. 2' designation was made on the basis that in 2010, proceeding SAD147/2010 had been commenced in the Federal Court, a native title claim also made by the Ngadjuri people and referred to as the 'Ngadjuri Nation Native Title Claim'. That claim over different land and waters to the present proceeding overlapped with other native title claims and was resolved by consent determination in 2018: Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993. 5 On 4 May 2021, the applicants' native title claim was amended. The native title claim as originally filed overlapped with the Wilyakali No. 1 Native Title Claim made in proceeding SAD89/2022 and, following negotiations, the applicants in both proceedings agreed to amend their applications to remove the overlap. 6 As part of the Federal Court's digitisation process and the establishment of the Court's Electronic Court File, the Ngadjuri Nation No. 2 Native Title Claim was renumbered as SAD84/2022 by orders of Registrar Lagos made on 20 May 2022. 7 Over the course of the proceeding, some parties have been added by way of joinder, and some have ceased to be parties. The current parties to this proceeding are identified in Schedule 8 of the orders and the Schedule of Parties accompanying this judgment. All current parties agree to and have signed the proposed consent determination.

The determination area 8 The determination area may be described in general terms as follows. Its northern boundary abuts the southern boundary of the Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim determination area from around Orroroo and extends along the Barrier Highway to just beyond the pastoral lease Oulnina. It proceeds southerly along the western boundary of the Oulnina pastoral lease and the eastern boundary of the Winninninnie pastoral lease to its south eastern corner, and extends to the south eastern corner of the eastern boundary of the Manunda pastoral lease. The boundary of the determination area runs generally south westerly along the boundary of the Manunda pastoral lease to the eastern boundary of the pastoral lease Faraway Hill and then along the boundary of that pastoral lease to its south eastern corner and then generally in a westerly direction to Red Banks Conservation Park. It proceeds around and along the boundary of Red Banks Conservation Park to its south eastern most corner and then generally southerly to Mimbara Conservation Park and along the eastern boundary of that conservation park to a point south of the Sturt Highway. It extends generally south westerly to a point south of Lyndoch and proceeds north westerly to a point on the southern boundary of the Nukunu Part A native title claim area and then generally northerly along the boundary of that claim area back to the point near Orroroo. 9 The determination area encompasses the residential areas of Peterborough, Lyndoch, Burra and the Clare Valley. Featuring extensive plains and rolling hills, much of the determination area is used for agriculture and pastoralism and encompasses various pastoral leases. The determination area also includes a number of conservation parks including Pualco Range, Pandappa, Caroona Creek, Mokota, Red Banks, Mimbara, Hopkins Creek, and part of Sandy Creek. Red Banks Conservation Park merits particular mention as it is a recognised place of Indigenous cultural significance, containing two sites listed on the South Australian Register of Aboriginal Sites and Objects. 10 The parties agree that the Ngadjuri people have an ancient and enduring connection to the lands and waters comprising the determination area. Expert ethnographic and anthropological evidence attests to the presence of Ngadjuri people at or around the places today known as Burra, Clare and Orroroo pre-dating 1788 and European settlement. There is also evidence that details of Ngadjuri Dreaming stories extend throughout the determination area and that there is contemporary knowledge of those Dreaming stories, particularly the Eaglehawk and Crow Dreaming. Notwithstanding the removal of many of the Ngadjuri from their country to Point Pearce and Point McLeay, the evidence shows that there is and has been a substantially uninterrupted and ongoing relationship between the observance of traditional laws and customs of the Ngadjuri people and the determination area. Specifically, there is evidence of land-based oral traditions, Dreamings, and particular access rules and knowledge regarding sites which continue to be vibrantly observed today. 11 Members of the contemporary Ngadjuri group provided evidence to the State supporting their continuing connection to the determination area through activities undertaken in accordance with traditional laws and customs including: Speaking for and taking responsibility for country; Camping and visiting country; Sharing cultural knowledge about sites and traditions; Hunting and gathering and sharing resources; Spiritual practices such as smoking ceremonies; and Knowledge and teaching of Dreamings relating to the determination area.

Requirements under the Native Title Act 12 Section 87 of the Native Title Act concerns the power of the Federal Court to make orders with respect to native title where the parties have reached agreement with respect to the proceeding or a part or aspect of the proceeding. 13 The Court is empowered to make an order in, or consistent with, the terms of such an agreement without holding or completing a hearing (s 87(2)) if: (1) The notification period specified in the notice given under s 66 of the Native Title Act has ended (s 87(1)); (2) The parties to the proceeding (including the applicable Commonwealth Minister, if the Commonwealth Minister is intervening in the proceeding at the time the agreement is made) are agreed on the terms of an order that the Court ought to make (s 87(1)(a) and (1)(aa)); (3) The terms of such an agreement are in writing and signed by the parties (and, if relevant, the Commonwealth Minister), and the agreement has been filed with the Court (s 87(1)(b)); (4) The Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)(c)); and (5) The Court is satisfied that it is appropriate to make the orders sought (s 87(1A)). 14 The first three requirements are preconditions to the exercise of power under s 87: Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [4]-[5]; Freddie v Northern Territory [2017] FCA 867 at [12]. In this proceeding, those requirements are satisfied. I have sighted a copy of the notice given under s 66 of the Native Title Act in 2012 and have confirmed that the notification period has elapsed. The proposed form of orders to effect the proposed consent determination and the minute of consent manifesting agreement to the making of those orders, reduced to writing and signed by each of the parties, were filed with the Court on 1 May 2023. 15 For the reasons that follow, I am also satisfied that the making of orders in the terms proposed is within the power of the Court and that it is appropriate to do so.

The Court is empowered to make the orders sought 16 To be satisfied that the orders sought are within the Court's power, consideration must be given to requirements imposed by other provisions of the Native Title Act: Freddie at [15]. I am satisfied that the proposed orders are within power, taking into account the following matters. 17 First, there is no challenge to the validity of the application for a consent determination and the application appears valid on its face. 18 Secondly, there is no extant native title determination in relation to the determination area the subject of the present proceeding and no issue of overlap with a previously approved determination of native title arises (ss 13(1)(a), 67, 68 of the Native Title Act). I have had particular regard to the procedural history of this matter and note the applicants' efforts to resolve issues of overlap between native title claim areas via consensual resolution. 19 As noted above, the determination area adjoins the determination area the subject of the Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim. It also shares a common boundary with the claim area the subject of the Wilyakali No. 1 Native Title Claim made in proceeding SAD89/2022. Although that boundary may not precisely follow any marked topographical feature, I am satisfied that there is no relevant overlap that would prevent a consent determination from being made. I accept the joint submission of the applicants and the State that: It is often the case in native title that boundaries between neighbouring Aboriginal groups do not reflect the form of precision that is seen in general property law and also that claim or determination boundaries adopt existing property markers for the sake of certainty on the ground. 20 Thirdly, the orders sought to give effect to the proposed consent determination are in the form required by the Native Title Act (ss 94A and 225 of the Native Title Act). I have reviewed the proposed orders and I note the following matters in particular: (1) Order 7 of the proposed orders to give effect to the proposed consent determination, with reference to schedule 1, defines the particular determination area by describing its external boundaries. The orders also particularise those areas within the determination area where native title exists (orders 8-9, and schedule 3) and where native title is extinguished (orders 10-11 and schedules 5 and 6). (2) The persons who are to be native title holders in relation to the determination area are described in order 12 of the proposed orders. (3) The native title rights and interests of the native title holders are set out in order 13 of the proposed orders, being non-exclusive rights to use and enjoy the land and waters in the determination area where native title exists, subject to general limitations set out in proposed orders 14, 15 and 16. (4) The nature and extent of other interests, and their relationship with native title, are described in orders 17, 18 and 19 of the proposed orders. (5) A tenure assessment was conducted for the purposes of the consent determination. The agreement of the parties as to the effect on native title of the various tenures granted and acts done in the determination area is reflected in the proposed consent orders. 21 Fourthly, the rights and interests the subject of the proposed consent determination are capable of recognition by the common law of Australia (s 223(1)(c) of the Native Title Act). 22 Fifthly, the parties seek orders that the Ngadjuri Nation Aboriginal Corporation ICN 7713 be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act and perform the functions mentioned in s 57(3) of the Native Title Act. The parties do not seek for the native title to be held on trust. I determine that the Ngadjuri Nation Aboriginal Corporation be the prescribed body corporate for the purposes of ss 57(2)(b) and 57(3) of the Native Title Act.

The role of the Court in a consent determination 23 The requirement that it appears appropriate in the circumstances for the Court to make a determination of native title reflects the significance of such determinations to the community at large: determinations are binding upon all persons, not just the parties to the proceeding in which the determination is made. See Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim at [14]; Munn at [22]. It follows that the orders made must be clear in their terms and the process be one which observes procedural fairness: Agius v State of South Australia (No 6) [2018] FCA 358 [64], [2023] FCA 454 at [46]. 24 However, the Court does not approach a consent determination in the same way that it would a contested hearing: Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474; Freddie at [16]. This is so for a number of reasons. 25 First, it is an important object and purpose of the Native Title Act that the resolution of issues concerning native title be achieved where possible by agreement or mediated settlement rather than via a contested proceeding: Munn at [28]; Freddie at [17]. It is therefore appropriate that the Court acknowledge and give effect to the statutory emphasis on conciliation. The resolution of proceedings by consent is also consistent with the overarching purpose of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) that civil disputes be resolved as inexpensively and efficiently as possible according to law: Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993. There is a public interest in a settled outcome as opposed to a contested process: Agius at [74]. 26 Citing Mortimer J in Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 at [8], the applicants and the State submitted and I accept that: [In the context of a consent determination] the Court relies very much on the joint submissions made by the parties. This is a well-accepted approach … the basis for the Court's orders under s 87 is the agreement of the parties, and the Court does not need to make its own inquiries as to the merits of the claim for native title: see Lander v State of South Australia [2012] FCA 427 at [11]-[12] (Mansfield J), quoting North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[37]. Recognition of this approach as permissible confers significant flexibility on parties to agreements for a consent determination. They may elect to agree on matters - not only of fact, but also of law - which, in a contested hearing, would favour one party or another because of the state of the law or the evidence. However, in a negotiated outcome, the very nature of the negotiation involves compromise, and parties may elect to compromise on facts and on their legal rights and interests, as long as the factual and legal preconditions exist for the Court to consider that a determination satisfies the requirements of the Native Title Act, so that the determination is within power and is appropriate to make. 27 Secondly, as a consequence of the parties' agreement it is not necessary that all of the material that informed the parties' consent position be filed with the Court. Nevertheless, there must be a sufficient basis for the Court to be satisfied that the requirements of the Native Title Act are met. It is proper for a Court to have regard to the evidential basis supporting the parties' assessment of the claim, including the process undertaken by the State to establish that a "credible and rational basis" for the determination exists in view of the fact that the State must consider the interests of the State community as a whole. See Agius at [64], [68]-[72]; King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386; 285 ALR 454 at [19].

The circumstances of the present proceeding 28 In the present proceeding, I am satisfied it is appropriate to make the proposed orders sought. 29 The parties have reached a consent position after more than three years of active negotiation. All parties who have signed the consent determination have been legally represented and may therefore be taken to have made an informed decision to agree to a consensual resolution of the native title claim. The orders proposed to give effect to the consent determination are certain in their terms. 30 In the process of reaching a consent position, the parties have assessed the substance of the native title claim and have compiled lay and expert evidence supporting the appropriateness of orders being made pursuant to s 87 of the Native Title Act. Although not filed with the Court, I note in this regard: (1) The two expert reports of anthropologist Robert Graham dated November 2019 and 3 July 2019 commissioned by the applicants. (2) The independent anthropological assessment of those experts reports commissioned by the State and undertaken by Kim McCaul. (3) The assessment of the expert reports and other supporting material by the Crown Solicitor's Office and independent Counsel retained by the State. (4) The position paper explaining the basis for the State's views that was distributed to all other respondent parties in November 2021. 31 There is also, in the public domain, the judgment of White J dated 14 December 2018 in the Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim, which recognised the Ngadjuri as forming part of a society united by traditional law and custom within the meaning of s 223 of the Native Title Act. 32 According to the joint submissions of the applicants and the State, the evidence speaks with one voice. The Ngadjuri people have an ancestral association with the areas over which they make claims to native title and, notwithstanding a degree of cultural attenuation following from European settlement, have continuously and consistently observed traditional laws and customs on and across those lands; a vitality of observation which extends to the present day. As the applicants and the State describe it: There is extensive evidence that the Ngadjuri people continue to have a physical and spiritual connection to the proposed Determination Area through their knowledge of culturally significant sites and stories, access and use for traditional purposes, accessing and using resources, and camping and fishing in key places. 33 I therefore regard it as unequivocal that the Ngadjuri people have a relevant connection to the proposed determination area within the meaning of the Native Title Act that ought to be recognised and acknowledged consistently with the provisions of the Act.

Indigenous Land Use Agreement 34 An important aspect of the factual circumstances of the present case is that the applicants and the State have agreed to enter into an Indigenous Land Use Agreement (ILUA) called the Ngadjuri Nation #2 Native Title Claim Settlement ILUA. Under the terms of the ILUA, those parties have agreed to validate certain acts that may have been invalid in the determination area and the ILUA provides a process pursuant to which the State may undertake certain future acts on native title land within the determination area once the ILUA is registered. The ILUA also provides for compensation and benefits in full and final settlement of the State's existing compensation liability pursuant to the Native Title Act in relation to the determination area. 35 As explained by those parties, the consent determination made today is contingent upon the ILUA in that the proposed consent orders provide that the consent determination will only come into effect once the ILUA has been successfully registered on the National Native Title Tribunal's Register of ILUAs. Should the ILUA fail to be registered within 8 months of the date of making the consent determination, the proposed orders provide for liberty to apply to the Court. 36 I note this feature of the proposed orders but I do not have any reservations about the appropriateness of making the consent determination today, particularly in view of the fact that there have been other recent consent determinations of native title in South Australia where, by the terms of the orders made, the determinations were not to take effect until an ILUA had been registered: Weetra-Height on behalf of the Nauo People v State of South Australia [2023] FCA 454; Sansbury v State of South Australia (Narungga Nation Native Title Claim) [2023] FCA 196; Wilson on behalf of the Wirangu People and Weetra on behalf of the Nauo People v State of South Australia [2023] FCA 60.

Conclusion 37 I am satisfied that the requirements of the Native Title Act are met and that a determination of native title in the form of the proposed consent orders should be made. 38 I emphasise that in making a determination of native title, the Court is not creating native title in the determination area. Rather, it is recognising under Australian law the native title that the Ngadjuri people have long-held over their traditional lands comprising the determination area, and which existed long before today. 39 I congratulate the parties for their successful efforts to resolve this claim by mutual agreement. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.

SAD 304 of 2011 Respondents Respondent: EPIC ENERGY SOUTH AUSTRALIA PTY LTD Respondent: AJ & PA MCBRIDE LIMITED Respondent: SA POWER NETWORKS (FORMERLY KNOWN AS ETSA UTILITIES) Respondent: THE DISTRICT COUNCIL OF PETERBOROUGH Respondent: THE DISTRICT COUNCIL OF ORROROO/CARRIETON Respondent: CLARE & GILBERT VALLEYS COUNCIL Respondent: WORTHING PROPERTIES PTY LTD Respondent: TRENEL PTY LTD ACN 008 282 880 Respondent: CLARE QUARRY PTY LTD ACN 008 052 846 Respondent: YVONNE DIXON SCHMIDT Respondent: TELSTRA CORPORATION LIMITED Respondent: LIGHT REGIONAL COUNCIL Respondent: THE BAROSSA COUNCIL Respondent: WAKEFIELD REGIONAL COUNCIL Respondent: PORT PIRIE REGIONAL COUNCIL Respondent: MID MURRAY COUNCIL Respondent: NORTHERN AREAS COUNCIL Respondent: MAGNETITE MINES LIMITED Respondent: HAVILAH RESOURCES NL Respondent: FARAWAY BRAEMER PASTORAL CO PTY LTD Respondent: THE MUTOOROO PASTORAL CO PTY LTD Respondent: MANTINA EARTHMOVERS & CONSTRUCTION PTY LTD ACN 007 820 886 Respondent: MANTINA INVESTMENTS PTY LTD ACN 110 431 386 Respondent: TREVOR ROBERT SCHMIDT

(SA), Crown Lands Act 1929(SA)

(SA), Native Vegetation Act 1991(SA)

(SA), Fisheries Management Act 2007(SA)

(SA), Landscape South Australia Act 2019(SA)

(SA), Mining Act 1971(SA)

(SA), and Petroleum and Geothermal Energy Act 2000(SA)

(Cth), the Telecommunications Act 1975(Cth)

(Cth), the Australian Telecommunications Corporation Act 1989(Cth)

(Cth), the Telecommunications Act 1991(Cth)

Petroleum Act 1940(SA)

Petroleum and Geothermal Energy Act 2000(SA)

Pipelines Authority (Sale of Pipelines) Amendment Act 1995(SA)

Local Government Act 1934(SA)

Crown Lands Act 1929(SA)

Native Title Act 1993(Cth)ss 13(1)(a), 57, 66-68, 87, 94A, 223(1)(c), 225

Wilson on behalf of the Wirangu People and Weetra on behalf of the Nauo People v State of South Australia [2023] FCA 60 Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993

THE COURT NOTES THAT: A. Native Title Determination Application No. SAD 84 of 2022 (formerly SAD 304 of 2011) was first lodged with the Federal Court of Australia on 21 November 2011. B. On 14 December 2018, the area covering the whole area of the Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim (SAD 6001 of 1998) was determined by consent: Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993. C. This area was a combination of the undetermined Adnyamathanha No 1 Native Title Determination Application (SAD 6001 of 1998), the whole of the Ngadjuri Nation Native Title Determination Application (SAD 147 of 2010) (Ngadjuri claim) and the whole of the Wilyakali No 2 Native Title Determination Application (SAD 417 of 2015) (Wilyakali No 2 claim). D. The Application was amended in the form of documents filed on 4 May 2021 and resolved any overlap by forming a common boundary between the Application and the remainder of the formerly overlapping the Wilyakali No 1 claim (SAD 33 of 2012). E. The Applicant and the First Respondent (State) have negotiated in good faith and with full advice from their legal representatives, including counsel, and experts, and have reached a compromise which is set out in an Indigenous Land Use Agreement (Ngadjuri Nation #2 Settlement ILUA) and in this Determination of native title. This Determination will take effect upon the registration of the ILUA under Division 3 of Part 2 of the Native Title Act 1993 (Cth) (NTA). F. The Applicant and the State have carried out an analysis of the historical tenure records within the Ngadjuri Nation #2 area (Determination Area). The tenure position reflected in this Determination represents a compromise that has been agreed between the parties for the purposes of settlement. The Applicant and the State agree that the Determination Area (including the Native Title Land and the area where native title does not exist) was Ngadjuri country at sovereignty. G. The parties acknowledge that, when this Determination takes effect, the members of the native title claim group described below, 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. H. The Applicant and the State are currently undertaking negotiations with respect to a potential agreement to be made pursuant to Section 47C(1)(b) of the NTA over the parcels described in Schedule 4 Part B. Pursuant to Section 13(5)(c) of the NTA the Applicant and the State will seek to revise this determination upon any such agreement being finalised. Being satisfied that a determination in the terms sought by the parties would be within the power of the Court and it appearing to the Court appropriate to do so:

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