King on behalf of the Eringa Native Title Claim Group v State of South Australia

The Requirements of the Native Title Act 11 Section 87 of the Native Title Act empowers the Court to make orders by consent on an application for the determination of native title under s 61 upon certain conditions. Those conditions are not onerous, but they must be satisfied. 12 Certain of those conditions are procedural in nature. The period of notice under s 66 must have elapsed. It has clearly done so in relation to both Eringa #1 and Eringa #3. A signed copy of the agreed orders must have been filed with the Court. That has also taken place. 13 More substantively, s 87(1) of the Native Title Act requires that, for the Court to make the proposed consent determination of native title without a hearing, the Court must be satisfied that such an order would be within its power, and s 87(2) requires the Court to be satisfied that it would be appropriate to make the orders agreed upon. In addition, because the orders seek a determination of native title, they must comply with s 94A of the Native Title Act. That section requires the proposed orders to set out details of the matters mentioned in s 225 of the Native Title Act. 14 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 The term "native title rights and interests" is defined in s 223(1) of the Native Title Act as: [T]he 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. 16 It is important to explain why those requirements are satisfied. It is especially important, 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). 17 In Lota Warria (on behalf of the Poruma and Masig Peoples) v Queensland (2005) 223 ALR 62, Black CJ said of those requirements at [5]-[8]: There can be no doubt as to the jurisdiction of the court to make the orders sought (sees 81 of the Act) and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded by making those orders. As the proposed order sets out details of each of the matters mentioned in s 225, the requirements of s 94A of the Act are satisfied. It remains only to consider whether it would be "appropriate" to make the orders sought. As I have noted elsewhere, the discretion conferred by s 87(1) must be exercised judicially, and within the broad boundaries ascertained by reference to the subject matter, scope and purpose of the Act. The matters to be taken into account in the exercise of the discretion, and the weight to be given to those matters, may very well vary according to the particular circumstances of each case. In the present case, it is clear that the parties have had independent and competent legal advice and there is no suggestion that the agreement was not freely entered into. The agreed terms of the proposed orders are unambiguous and are appropriate in the circumstances. 18 His Honour then proceeded to consider briefly the material before the Court. He considered it appropriate to make the orders as agreed. 19 More recently, the Court has been prepared 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. It acts in the public interest and as the public guardian in doing so. It 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. Although 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. That is the case in this instance. 20 Hence, in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J stated 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. 21 The Court does not therefore routinely embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn at [29]-[30] per Emmett J. See also Smith v State of Western Australia (2000) 104 FCR 494 at [38] per Madgwick J: State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines as to significant rights over such land. 22 That approach has been adopted in a number of recent decisions: Jungarrayi on behalf of the Mirtartu, Warupunju, Arrawajin and Tijampara Landholding Groups v Northern Territory of Australia [2011] FCA 766; Kngwarraye on behalf of the members of the Arnerre, Wake-Akwerlpe, Errene and Ileyarne Landholding Groups v Northern Territory of Australia [2011] FCA 765; Campbell v Northern Territory of Australia [2011] FCA 580; King v Northern Territory of Australia [2011] FCA 582; Wavehill v Northern Territory of Australia [2011] FCA 581; Wavehill v Northern Territory of Australia [2011] FCA 584; Young v Northern Territory of Australia [2011] FCA 585; Young v Northern Territory of Australia [2011] FCA 583; Jones v Northern Territory of Australia [2011] FCA 573; Carlton v Northern Territory of Australia [2011] FCA 576; Paddy v Northern Territory of Australia [2011] FCA 574; Simon v Northern Territory of Australia [2011] FCA 575; Long v Northern Territory of Australia [2011] FCA 571; Rosewood v Northern Territory of Australia [2011] FCA 572; Barunga v State of Western Australia [2011] FCA 518; Goonack v State of Western Australia [2011] FCA 516; Kngwarrey on behalf of the members of the Irrkwal, Irrmarn, Ntewerrek, Aharreng, Arrty/Amatyerr and Areyn Landholding Groups v Northern Territory of Australia [2011] FCA 428; and Nelson v Northern Territory of Australia (2010) 190 FCR 344 (Nelson). 23 In Nelson, Reeves J adopted that approach and explained the reasons for doing so in the following way at [12]-[13]: It is appropriate to make some comments about the difficult balance a State party needs to strike between its role in protecting the community's interests, including the stringency of the processes it follows in assessing the underlying evidence going to the existence of native title, and its role in the native title system as a whole, to ensure that it, like the Court and all other parties, takes a flexible approach that is aimed at facilitating negotiation and achieving agreement. In Lovett North J commented: … There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. I respectfully agree with North J in these observations. In my view, it would be perverse to replace a trial before the Court with a trial conducted by a State party respondent and I do not consider that is what is intended by the provisions of s 87 of the Act. 24 In this matter, the Court has had the benefit of the joint submissions. They confirm that the State is satisfied that the agreed determination is a proper one. It has had the benefit of a thorough examination of the available evidentiary material. The joint submission in turn refers at considerable length to the material on which it has relied. 25 It is helpful to refer to that material in a little detail. 26 The evidence in these matters includes three reports co-authored by anthropologists for the South Australian Native Title Services (SANTS), Ms Susan Woenne-Green, Ms Lyn Coad and Mr Jacob Habner. Ms Woenne-Green is an anthropologist with many years' experience with Western Desert peoples in South Australia. Ms Coad has worked with SANTS since 2000. Mr Habner was a research officer with SANTS from 2004 to 2009. Their reports initially consisted of a 268 page Witjira Native Title report, plus appendices, genealogies and a site index. A Witjira Supplementary Report and further statements were subsequently provided. In addition, the applicants rely on evidence, including anthropological reports, prepared by Dr Scott Cane in November 2005 and February 2006. 27 Dr David Martin, the State's independent consultant anthropologist assessed the evidence. Dr Martin has extensive experience in a large number of native title claims and has been an adviser in native title matters for both the State and for the applicants. 28 The fact that the State, through its legal representation, is sufficiently satisfied as to the proposed evidence of the Eringa Peoples and has considered the interests of the community generally means the Court can move with some assurance to proceed to make the Determination. In this matter, it is evident that the State has applied a rigorous approach to assess the proposed evidence of the claims, broadly in accordance with its document entitled Consent Determinations in South Australia: A Guide to Preparing Native Title Reports (sometimes called the State's CD Policy). 29 Each of the respondents has received a position paper explaining the basis for the State's view and has had the opportunity to review its conclusions and to ask any questions about them. I am also satisfied that the consent of the State and the other respondent parties to the proposed determination is a fully informed and conscientious one, having considered the requirements of the Native Title Act. 30 However, it is fitting that I should explain why the Court is satisfied of those matters. The evidence must show that there is a recognisable group or society that presently recognises and observes traditional law and customs in the determination area. In defining that group or society, the following must also be addressed: 1. that the claim group comprises a society united in and by their acknowledgement and observance of a body of accepted laws and customs; and 2. that the present day body of accepted laws and customs of the society in essence is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; and 3. that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs. 31 The claim group must show that it still possesses rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land. See generally Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; Risk v Northern Territory [2006] FCA 404; and Western Australia v Ward (2002) 213 CLR 1.

The relevant society for the purposes of s 223 of the Native Title Act 32 The relevant societies to which the applicants belong are the Lower Southern Arrernte and the Luritja/Yankunytjatjara. Any one claimant may identify with a different one of these labels at different times and a claimant who identifies as one label can be referred to by reference to another label by others. This flexibility in designation is common across the region and well-documented in the anthropological literature about the region. 33 In the Witjira Determinations, the Court was satisfied that the Lower Southern Arrernte, the Luritja/Yankunytjatjara peoples, and the Wangkangurru people, where those claim areas overlapped the WY Claim, formed a society united by traditional laws and customs sufficient to comply with the Native Title Act. These groups have been described as closely linked although distinct societies with shared rights and responsibilities. This is supported by genealogies and ethnographies from Ronald and Catherine Berndt, T.G.H Strehlow and Doohan. 34 I am satisfied that the level of detail provided by the applicants to identify the native title claim group and its society satisfies the requirements of the Native Title Act.

The relationship between the claim group's society and the society in the determination area at sovereignty 35 The association of the Lower Southern Arrernte, and the Luritja/Yankunytjatjara people with the area of the Witjira National Park was acknowledged in the Witjira Determinations. In that matter, Lander J said the following at [27]-[31]: In support of the application for a consent determination of native title, the State of South Australia has filed written submissions on behalf of all of the principal parties in each of the four claims. The submissions also attach a summary of the evidence in support of a determination filed in the proceedings, being various reports jointly authored by Ms Susan Woenne-Green, Ms Lyn Coad and Mr Jacob Habner, who are anthropologists with South Australian Native Title Services Ltd. The people asserting native title rights and interests in the Park, the Lower Southern Arrernte and Wangkangurru, are two 'closely interrelated and interpenetrating yet distinct societies'. The link of the claimants to the land and waters of the park at the time of sovereignty is evidenced by numerous ancestors of the contemporary claimants who were born at various places in the area during the late nineteenth century. The continued existence and vitality of the societies' traditional laws and customs is said to have traditionally been passed down through patrifilial association, which more recently evolved into a cognatic form, though with an emphasis in the Lower Southern Arrernte claimants on patrifilial association where that can be established. Accordingly, the manner in which the claimants have gained rights and interests is systematic and traditional. The claimants have demonstrated that the individual societies are united in their acknowledgment and observance of traditional laws and customs by providing contemporary evidence of ways in which that is achieved. That included, for the Lower Southern Arrernte, claimants evidence concerning an age based hierarchy, visiting and cleaning sacred sites, teaching children about bush tucker in the Park, gender and other restrictions on ritual and religious information and behaviour, handing down of names, initiation ceremonies, particular kinship terms, songs and stories. For the Wangkangurru claimants, the evidence concerned a regional system of authority, age based hierarchy, belief in spiritual sanctions, handing down of names, kinship terms, the passing down of knowledge, stories and the use of bush tucker. The claimants have maintained their connection with the area by the inheritance of rights from an ancestor. Other forms of physical connection exist through members visiting and cleaning sacred sites, teaching children about bush tucker in the Park, a claimant acting as a park ranger, and regular camping trips in the Park for the purpose of teaching dreaming stories to children. A number of claimants have also played an important role in the Park's land management. 36 Those comments apply equally to this matter. In addition, the Joint Submission filed on behalf of the applicants and the State states that the National Native Title Tribunal Enhanced Research Report clearly shows a similar association for the areas to the west. The available reports include substantial family history material that links the contemporary claimants' ancestors to the consent determination areas at various times during the nineteenth century, and point to specific individual ancestors of today's claimants who lived in the determination areas. 37 On the basis of the information provided, I am satisfied that the contemporary Lower Southern Arrernte and Luritja/Yankunytjatjara society is directly linked to the native title holders at sovereignty.

Has there been substantially uninterrupted observance of traditional laws and customs since sovereignty? 38 In this regard, I refer to the passage quoted from the Witjira Determinations above. The relevant laws and customs are those of the Lower Southern Arrernte and Luritja/Yankunytjatjara peoples which have been well documented in the ethnographic literature. Dr Martin assessed the material and prepared two reports in this regard. 39 The groups continue to observe rules about the distribution of rights according to seniority and authority. The traditional laws and customs that are practised in relation to authority appear to be directly related to knowledge of the sacred geography of the region. 40 Dr Martin found that continuing traditional laws and customs included transmission of knowledge to younger generations through teachings, the structure of land holding groups, contemporary kinship terminology, gender restriction, naming conventions and customs regulating death and burial, and knowledge of dreamings. He found that the traditional significance of birthplace has changed from the importance of an individual's birthplace to that of a significant forebear. He accepts, however, that this is an acceptable change due to the change in lifestyles since the increase in both pastoral work and European presence. 41 On the basis of the evidence, I am satisfied that sufficient numbers of Lower Southern Arrernte and Luritja/Yankunytjatjara are still actively engaged in and affected by their traditions. I also accept that they adhere to and actively participate in those traditions, and that it is by those traditions that connection to country is established.

Connection to the determination area by traditional laws and customs 42 Examples of the claimants' connection to the land include birth on the land, inheritance or transmission of rights from an ancestor and prolonged associations and knowledge of responsibilities for the Tjukurpa or other relevant traditional laws and customs gained from older people while living or working on a station. The evidence establishes that the connection to the land is maintained by visiting and clearing sacred sites and learning the Tjukurpa or other relevant traditional laws and customs. They teach others and learn from others about the culture on the land. Connections through birth and death places continue, as do familial connections and through hunting grounds. 43 Most of the claimants live on or close to the determination area. 44 I am satisfied that there is sufficient evidence of continued connections to the claim area by the claim group's laws and customs.

The relationship between the traditional laws and customs of the relevant society and the rights and interests claimed by the applicant 45 The Determination sets out the rights and interests agreed between the parties. These rights are consistent with the traditional rights and interests that would have been observed at sovereignty as supported by the anthropological evidence. 46 Claimants' statements and reports provide examples of such rights. Some notable examples include claimants sharing and controlling access, regulating access and behaviour at important sites, teaching on country, speaking for the country, site clearance, asking permission for water, and attending ceremonies on the nearby park. 47 Examples of established rights for the determination area include: undertaking ceremonial activity on the area; carrying out and maintaining burials on the area; teaching and transmitting cultural knowledge on country; hunting and fishing; gathering and using natural resources; sharing and exchanging the subsistence and other traditional sources; using water; and living and camping and cooking. 48 I am satisfied that the claimants engage in the activities covered by the rights and interests included in the Determination and that these rights and interests arise from traditional law and custom.

Section 225 of the Native Title Act 49 Section 225 of the Native Title Act governs what determinations of native title must include. I am satisfied that the Determination complies with each requirement of s 225(a). Paragraph 5 of the Determination defines the group of native title holders and the criteria by which they have group membership. This reflects the evidence about relevant ancestors through whom individuals hold rights and interest in land. It also fulfils the requirements of s 61(4) Native Title Act as it is possible to ascertain whether any particular individual is within the native title claim. 50 Paragraphs 6 to 9 of the Determination set out the nature and extent of the native title rights and interests in the determination area. Schedule 3 and Paragraph 10 of the Determination lists areas which have been excluded from the determination area, in the case of Parts 1 to 4 of that Schedule, by reason of the generic exclusion by the applicants of any area over which native title has been extinguished. Other areas have been specifically excluded in Part 5 of Schedule 3 for the avoidance of doubt. 51 Paragraphs 10 to 16 of the Determination list the nature and extent of other interests in the determination area. This has been the subject of some negotiation between the applicants and the State and the various respondents. There has been ample opportunity for any other interest-holders in the area to identify themselves and seek to be joined as a party to the claims. The State's tenure searches have not identified any other relevant interest holders in the area. 52 Paragraph 17 of the Determination describes the relationship between the native title rights in Paragraph 6 and those other rights in Paragraphs 10 to 16. 53 Most of the determination area is covered by non-exclusive pastoral leases. There are no areas where the native title rights and interests confer possession, occupation, use and enjoyment of that land and waters on the native title holders to the exclusion of all others.

Other matters 54 All parties to the proceeding have agreed on the making of and the terms of the Determination and have filed signed copies of the Determination with the Court. 55 Eringa #1 was first lodged in 1996. It originally covered most of the Witjira National Park, as well as parts or all of seven pastoral leases, namely, Tieyon, Crown Point, Eringa/Hamilton, Mt Sarah, Stevenson and Macumba. The claim was recently amended to decrease the area of land claimed so that the adjacent Tjayiwara/Unmuru claim could be lodged to the west without overlap. 56 Eringa #3 was lodged in 2010 to cover a small portion of land in relation to the Macumba and Allandale pastoral leases that had remained, until then, unclaimed (forming the boundary with the adjacent Arabunna Peoples' claim and the Yankunytjatjara/Antakirinja determined areas to the south). The Eringa #3 claim group is comprised of the same claimants as Eringa #1. 57 The applicants have filed with the Court, pursuant to s 87 of the Native Title Act, a draft determination. I am satisfied that all relevant interest holders in the area have had an opportunity to take part in the proceeding. 58 The parties who have signed the draft determination are: 1. The applicants 2. The State 3. Telstra Corporation 4. SANTS 5. The pastoral respondents 6. The mining respondents 59 All parties have had the opportunity to obtain independent legal advice in the proceedings. 60 The determination area in Schedule 1 to the Determination contains a detailed description of the claim area. 61 On the basis of all of the evidence, I am satisfied that the requirements of ss 223 and 225 have been met. 62 Section 87 of the Native Title Act allows the Court to make a consent determination in the native title proceeding even though the proceeding has not been heard by the Court. I have no doubt that it is appropriate to make a final determination over the determination area on the basis of the evidence presented on behalf of the applicants for the reasons set out above. 63 A tenure history of the claim area was provided by the State and made available to all the parties to the claims. Rather than carry out a detailed historical analysis of this tenure, the State has described generically in the Determination, where the parties are agreed that areas exist, where native title has been wholly extinguished. Those areas within the determination area where native title has been extinguished are described in Schedule 3 of the proposed determination. 64 The remainder of the claim areas comprises pastoral leases over which there has been partial extinguishment of native title. The parties are agreed that the claimants do not have any right of exclusive possession over those areas, and that the native title rights of the claimants co-exist with those of the pastoralists, with the latter prevailing in the event of inconsistency. In line with decision of the Full Court of the Federal Court in De Rose v State of South Australia (No 2) [2005] FCAFC 110 (De Rose) and subsequent consent determinations in this State, Paragraph 11 of the Determination recognises the extinguishment of native title rights and interests over the pastoral leases within the determination area where certain improvements authorised by the pastoral leases have been constructed. 65 I record that due to disagreement on whether the Full Court in De Rose held that certain future pastoral improvements occurring after the date of the consent determination extinguish native title, Paragraph 12 of the Determination has been drafted to cover the position until the law in relation to future improvements is settled. 66 Extinguishment of native title rights and interests in the determination area by reason of the construction of public works is provided for in Paragraph 15 of the Determination. This paragraph provides for native title to be wholly extinguished over public works constructed, established or situated, or commenced to be constructed or established prior to 23 December 1996, and leaves it to Pt 2, Div 3 of the Native Title Act to determine the effect of those public works constructed, established or situated after 23 December 1996.

Conclusion 67 The Native Title Act, as recognised by the Court, encourages the resolution by agreement of claims for determinations of native title. For the reasons set out above, the Determination is appropriate and should be made in this proceeding. I will make orders accordingly. The Court, by these orders, recognises once and for all the native title rights and interests of the Lower Southern Arrernte and Luritja/Yankunytjatjara people in this area. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Keane.