Coulthard v State of South Australia

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 69 of 2010

BETWEEN: RUSSELL COULTHARD and ALWYN HAMILTON McKENZIE

JUDGE: MANSFIELD J DATE: 8 DECEMBER 2015 PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This application was filed on 18 May 2010 by Russell Coulthard and Alwyn Hamilton McKenzie on behalf of the previously determined Adnyamathanha No 1 native title holders (Claim SAD 6001 of 1998): see Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359. An amended application was filed on 2 December 2010. On 11 March 2011, the Native Title Registrar's delegate accepted the application for registration under s 190A of the Native Title Act 1993 (Cth) (the Act). Notification of the claim was completed on 5 July 2011. 2 The application primarily concerns an area called Yappala that is to the north of Hawker in South Australia and had been excluded from the area of the Adnyamathanha No 1 native title claim pursuant to s 61A(2) of the Act. Yappala is primarily comprised of perpetual lease land and freehold land. There is also some un-allotted Crown land in the proposed determination area. 3 In 2012 with the approval of the Court, the Applicants and the State stated a case pursuant to r 38.01 of the Federal Court Rules 2011 (Cth) concerning the application of s 47A of the Act to 25 parcels of land consisting of 16 perpetual leases and nine freehold titles held by the Viliwarinha Yura Aboriginal Corporation (VYAC) in the claim area. 4 The parties agreed that, at the time of the application, one or more members of the native title claim group occupied each of the areas comprising the perpetual lease land and the freehold land for the purpose of s 47A(1)(c) of the Act. 5 The Federal Court delivered its judgment on 19 February 2014 and held that s 47A of the Act applies to the perpetual leases and the freehold titles held by the VYAC so that any prior extinguishment is to be disregarded: Adnyamathanha People No 3 Native Title Claim v State of South Australia [2014] FCA 101. 6 Following that decision, the parties to the application have reached agreement on the orders to be made in this proceeding pursuant to s 87 of the Act in terms of the proposed Determination (the Consent Determination). 7 The terms of the Consent Determination have been agreed by all other parties to the proceeding who have an interest in the Determination Area and a Minute of Consent has been signed by those parties. 8 The proposed determination covers all of the land and waters subject to the application, including the township of Hookina and any allotments which fall within the external boundaries of the claim area and Sections 160, 161, 228 and 229 of the Hundred of Barndioota, which were excluded from consideration in the Adnyamathanha No 1 Stage 2 Determination: see Coulthard v The State of South Australia [2014] FCA 124. 9 Following the February 2014 judgment referred to at [5] above, the parties have reached agreement as to the application of ss 47A and 47B of the Act and the extinguishing effect of the various tenures in the Determination area for the purposes of the making of consent orders. 10 Under the Consent Determination, exclusive native title will be recognised over land to which ss 47A and 47B apply. The native title will, however, be subject to the arrangements under which the Indigenous Land Corporation has vested the land in VYAC. There are also two parcels over which non-exclusive native title is to be recognised and the Consent Determination records those areas where native title has been extinguished. 11 It is necessary for the Court to be satisfied that the requirements of ss 223 and 225 of the Act are satisfied, and it is appropriate and within the power of the Court to make the orders sought pursuant to s 87 of the Act. Those requirements are addressed in the following paragraphs of these reasons. 12 As noted above, consent determinations have already been made in respect of some of the Adnyamathanha People No 1 claim area. Those determinations accept that the Adnyamathanha People are a recognisable group or society which recognises and observes traditional laws and customs in the areas covered by those determinations. 13 The areas which are the subject of the proposed determination are surrounded by areas covered by the existing Adnyamathanha determinations. In those circumstances, for the purpose of this Determination, it is safe to conclude that the requirements of s 223 are met. 14 Section 225 of the Act governs what the Consent Determination must include. The Applicants and the State submit that the Consent Determination complies with each requirement of that section. I am satisfied that that is correct. 15 The Consent Determination describes the parcels in the Determination Area (paragraph 2), and sets out with particularity those areas where native title exists (Schedules 1 and 1A), and those areas within the Determination Area where native title is extinguished (Schedule 2). 16 For the purpose of s 225(a) of the Act, paragraph 6 of the Consent Determination defines the group of native title holders and the criteria by which they have group membership. This is the same as for the existing determinations. 17 For the purpose of s 225(b) of the Act, paragraph 7 of the Consent Determination sets out the nature and extent of the native title rights and interests in the Determination Area. Paragraphs 8 and 9 set out the general limitations on their exercise. 18 For the purpose of s 225(c) of the Act, paragraph 10 of the Consent Determination sets out the nature and extent of other interests in the Determination Area. The content of this paragraph has been informed through tenure searches undertaken by the State. There are no other respondent parties to the claim with interests in this area, but negotiations have occurred with two non-parties (SA Power Networks and Santos Pty Ltd) who own infrastructure in the area with accompanying rights of access. Clauses have been included recognising their rights. The State's comprehensive tenure searches have not identified any other relevant interest holders in the Determination Area. There has been ample opportunity for any other interest holders in the area to identify themselves and join as parties to the claim. 19 For the purpose of s 225(d) of the Act, paragraph 11 of the Consent Determination describes the relationship between the native title rights in paragraph 7 and those other rights in paragraph 10. 20 For the purpose of s 225(e) of the Act, the native title rights and interests recognised in almost all of the Determination Area (save for two parcels) are exclusive. 21 Agreement has been reached between the parties to these proceedings on the terms of the Consent Determination and signed copies of that Determination have been filed with the Court. That is a process provided for by s 87 of the Act. 22 On the basis of the material submitted to the Court, I am satisfied that it is appropriate, and within its power, for the Court to make orders pursuant to s 87. 23 All of the parties to the Determination (and those non-parties with rights recognised in paragraph 10 of the draft Determination) have had independent and competent legal advice in the proceeding. 24 The Act encourages the resolution by agreement of claims for determinations of native title. The State and the Applicants consider that the Consent Determination is appropriate and should be made in this proceeding. By signing the Minute of Consent Determination of native title, the other parties to the proceeding have indicated their agreement. For the reasons given, I regard that course as proper to be given effect to. I accordingly make the Determination of native title with the Orders set out in detail accompanying these reasons. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.