O'Donnell on behalf of the Wilyakali Native Title Claim v State of South Australia

Federal Court of Australia|2023-08-28|Before: Raper J

The application 5 On 8 February 2012, the applicants first lodged "Native Title Determination Application Claimant Application", now SAD 89 of 2022 (formerly SAD 33 of 2012). This application covered extensive areas of land within South Australia on the western side of the South Australian/New South Wales border, and the external boundary of the claim area was initially described by the applicants as follows: The South Australia/New South Wales border between GDA 94 coordinates 31°15'000 S / 141°00'000 E and 32°46'000 S/ 141°00'000 E determines the eastern boundary of the Wilyakali native title claim area. From its northeastern-most point at 31°15'000 S / 141°00'000 E the boundary moves in a south-westerly direction to approximately 31°30'000 S / 140°15'000 E where it meets the boundary of the Adnyamathanha People No. l Native Title Claim [SAD6001 /1998] at the south-eastern corner of Benagerie Station. It then follows the Adnyamathanha native title claim boundary in a south-easterly direction taking in the north-eastern corner of Yarramba Station, continuing south-easterly down to the Wompinie Homestead turn-off at approximately 32°00'000 S / 140°45'500 E where it veers south-westerly to approximately 32°07'600 S / 140°45'000 E at Mingary on the Barrier Highway. The boundary then continues along the Barrier Highway in a south-westerly direction to include the townships of Olary, Mannahill and Yunta to approximately 32°35'000 S / 139°33'000 E where it turns back in a south-easterly direction along the Yunta Creek and down to approximately 32°58'000 s / 140°00'000 E. The boundary then moves in an easterly direction to meet the southeastern-most corner of the claim area at the South Australia/New South Wales border at approximately 32°46'000 S / 141°00'000 E. 6 After filing this application, other applications were made. On 14 December 2018, the area covering the whole area of 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. 7 The area which was the subject matter of the Coulthard determination comprised a combination of the undetermined Adnyamathanha No 1 Native Title Determination Application (SAD 6001 of 1998), the whole of the Ngadjuri Native Title Determination Application (SAD 147 of 2010) and the whole of the Wilyakali No 2 Native Title Determination Application (SAD 417 of 2015). 8 At the time this claim was filed, it partially overlapped with the claim made by the Ngadjuri people the subject of proceedings in Branson on behalf of Ngadjuri Nation #2 Native Claim v State of South Australia [2023] FCA 715 (SAD 84 of 2022, formerly SAD 304 of 2011) (Ngadjuri Nation No 2 claim). Following negotiations between the Wilyakali and Ngadjuri people, it was agreed that their respective claims would be amended so as to eliminate any overlap between them. 9 After these developments, the application was amended and filed on 15 March 2021. The intention of this amendment was, and it did in fact, resolve any overlap by forming a common boundary between this application and the remainder of the former overlapping Ngadjuri Nation No 2 claim.

The determination area 10 The area which is the subject of the determination is as described in the written description given to it in Schedule 1. By general description it is a parcel of land in an inverted blocked L-shape which covers appropriately 10,343 km2 and abuts the south-eastern corner of the Adnyamathanha, Wiliyakali, Ngadjuri determination area from about (but not including) Oulnina on the Barrier Highway (which forms the northern boundary of much of the claim). It extends to the SA/NSW border and includes the whole of the following pastoral leases: Aroona West, Benda, Bundera, Canewood, Devonborough Downs, D'Lorah Downs, Eringa Park, Lake Dismal, Maldorky, Mundi Mundi, Pine Creek, Radium Hill, Taltabooka North, Tepco, Tikalina, Wadnaminga, Wawirra, and Wiawera; and portions of Bindarrah, Boolcoomatta, Kalkaroo, Manunda, Mulyungarie, Mutooroo, Netley Gap, Oakbank, Oulnina Park, Quandong, Tiverton, Wompinie and Yarumba. 11 The expansive area is broadly defined as Australian arid zone and includes dry, undulating hilly areas, low scrub land dominated by bluebush and salt bush, creeks and dams.

European settlement of the claim areas 12 By the mid to late 19th century, the determination area had been settled and comprised the North-East Pastoral District. A number of historical events at this time contextualised the movement of Wilyakali ancestors away from their traditional lands in South Australia to Poolamacca in the late 19th century (although noting this movement was consistent with the Wilyakali peoples' traditional movement patterns). The historical events included the erection of fencing around the various stations which restricted the freedom of movement of the Wilyakali people. The fencing appears to have been, in part, a response to the cumulative effects of the devastating drought in the late 1880s-1890s, soil erosion and introduced species. 13 As anthropologist, Ms Sandra Jarvis, opined in her 2020 expert report: Rabbits were well established in the region by the late 1800s subsequently reaching plague proportions. Drought and financial depression, combined with widespread soil erosion across the district caused by the uncontained grazing pressure of rabbits, resulted in eradication methods to control them and the increased presence of dingoes. In addition, the change from shepherding to fencing sheep into paddocks made them vulnerable to dingo predation. It was for this reason pastoralists quickly discovered that the only successful method of combating dingoes was the erection of substantial high netting fencing fences, poisoning and trapping. 14 The destruction of the land is apparent from the observations made in the Adelaide Observer, on 17 July 1897, when describing the area around Oulnina Station (the western tip of the inverted L-shape of the determination area): Where there is not a skerrick remaining, where the ground is as bare as a macadamized road, it is doubtful whether the bush will ever recover. …At Oulnina some time ago Mr A Treloar [noted] …it would take many years to get the country back to its former state. …The fallacy of the idea that the 1888 leases are fully improved has long since demonstrated. …When Waukaringa was a thriving mining centre the several hundred inhabitants had the right to cut the scrub within a distance of fifteen miles of the town. This naturally led to the destruction of a large number of valuable trees in this particular locality. Thousands of valuable shrubs and trees owe their destruction to the rabbits. …Outalpa is divided into 18 paddocks. …to make proper use of this country feed tanks and further subdivision are necessary. …Mr Kent [of Outalpa] said the rabbits which ate them out 3 years ago - they were present in thousands even at the beginning of the year - had nearly all perished owing to the drought. …Most of the rodents which survive the drought manage to do so by making back into the rough hills where they find the necessaries of life. But when spring decks the plain they venture forth again and renew their work of devastation. …Rabbits are migratory and it is very disheartening for one man, after eradicating the vermin as far as possible, to find millions of rabbits …sweeping across his country and eating all before them. [Dog eradication; dog scalpers and 'expert dog catchers'] 'The dogs are terribly bad now', so Mr Kent told us. …At the beginning of last summer 40,000 [rabbits] were killed in one month at one dam at Mutooroo. …Mr Kent of Outalpa expressed the opinion '…I give a man as much strychnine as he can take out and as many traps as he can look after, and although he represents that he is doing his utmost to suppress the dogs, they are still running in the paddock.

Evidence filed supportive of the application 15 The applicants filed their own evidence as well as expert anthropological evidence. 16 The lay evidence comprised the following affidavits from the members of the claim group: (a) The affidavit of Mr Glen Stanley O'Donnell dated 20 October 2011. (b) The affidavit of Ms Dulcie O'Donnell dated 20 October 2011. (c) The affidavit of Ms Maureen O'Donnell dated 20 October 2011. 17 The only expert anthropological report that was filed was that of Ms Sandra Jarvis dated 17 December 2020, titled "Response to Anthropology Report for the Wilyakali No.1 Native Title Claim". However, in the parties' submissions, they submitted that the applicants also relied upon a report of Ms Jarvis dated October 2020 (which was not filed with the Court), and that Ms Jarvis provided two additional written responses to questions raised by the State's expert assessor. The State commissioned Mr Kim McCaul to assess the expert reports provided by the applicants. 18 It is apparent that the State has given careful consideration to the material provided by the applicants, sought further information from the applicants over time and also considered the expert evidence which no doubt contributed to the negotiation of and agreement with respect to native title rights and interests in relevant parts of the determination area. It also appears to have led to the negotiation of an indigenous land use agreement (the Wilyakali Settlement ILUA).

Whether the determination is within power 19 Specific consideration of the principles to be applied when determining whether the orders sought are within the power of the Court was given by Mortimer J (as her Honour then was) in Freddie v Northern Territory [2017] FCA 867 at [15]-[24], which are set out as follows: 15 In order to be satisfied that the orders sought are within the power of the Court, consideration must be given to other restrictions or requirements in the Native Title Act. For example, the area covered by the orders must not overlap with any other application for determination of native title (s 67(1)); similarly, the area covered by the orders cannot have been the subject of a previously approved determination of native title (s 68). Further, the orders sought will only be within power if they set out the details of the matters required by s 225 (see s 94A) and if they concern rights and interests which the Australian common law is able to recognise (s 223(1)(c)). 16 The Court's function under s 87 is quite different from its function in a contested application for a determination of native title, and this difference has been confirmed in many authorities of this Court: see Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J), which has been endorsed many times; and see for example Thudgari People v State of Western Australia [2009] FCA 1334 at [25] (Barker J); Goonack v State of Western Australia [2011] FCA 516 at [25]-[26] (Gilmour J), in relation to s 87A; Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 at [27] (Barker J). In Lander v State of South Australia [2012] FCA 427 at [11], and by reference to Lovett, Mansfield J emphasised that the focus of the Court under s 87 is on the making of the agreement by the parties. 17 The Court's function under s 87, and its discretion, must also be understood in the context of the Native Title Act's emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that: A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. (Emphasis added.) 18 The concept of "appropriateness" in s 87(1A) also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] (French J). The rights conferred are enduring legal rights, proprietary in nature and in recognising them through a determination, the Court must be conscious of their character. The nature of the rights informs considerations such as the clarity of the terms of the determination (as to the claim area, the nature of the native title rights and interests and the manner of affectation on other proprietary interests); the need for appropriate notification and then the free and informed consent of all parties; and finally the State's agreement that there is a credible and rational basis for the determination proposed. 19 The discretionary evaluation of whether orders are appropriate is a wide one, but the Court must focus on the individual circumstances of each proposed determination: see Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 at [18] (North J). 20 I accept it is also important to see the exercise of the judicial power in s 87 in the context of the Court's jurisdiction as a whole, and its foundational legislation, the Federal Court of Australia Act 1976 (Cth), and in particular s 37M and s 37N of that Act. In exercising the discretion under s 87, the Court should pursue the objectives there set out, of promoting "just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible". See the observations of Jagot J in Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 at [12]; also her Honour's similar observations in Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851 at [1] and [9] and Yaegl People #1 v Attorney General of New South Wales [2015] FCA 647 at [9]-[10]. 21 Since the determination made by the Court must include the matters set out in s 225 of the Native Title Act, there must be some probative material against which the Court can assess whether those matters can be stated in a determination. The principal source will be the parties' agreed position put to the Court in the proposed orders and determination setting out the matters required by s 225, together with an agreed statement of facts filed pursuant to s 87(8), joint submissions and any supporting documents such as an expert report. That is not to suggest an expert report is always necessary, but if one has been produced and it forms part of the material upon which the State (or Territory) has relied in agreeing to a determination, it is likely to be appropriate for such a report to be before the Court. Such reports, if filed and relied on by the Court, provide an opportunity for the Court to record at least some of the material establishing connection to the claim area in a publicly accessible form. However there is no need to provide the Court with all of the evidence of the primary facts substantiating native title. Again, that is because the premise of s 87, and the Native Title Act's emphasis on conciliation, is that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 (at [9]) (Bennett J), cited with approval in Peterson v State of Western Australia [2013] FCA 518 at [22] (McKerracher J). See also Ward v State of Western Australia [2006] FCA 1848 at [8]. 22 In Brown v Northern Territory of Australia [2015] FCA 1268 at [23], Mansfield J described the task to be undertaken by the Court in the following way: The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. 23 The State, in particular, comes to an agreement under s 87 only after discharging its public responsibilities to ensure the agreement is in the interests of the community it represents. This must involve, but it is not limited to, satisfaction by the State that there is a sufficient basis to put forward the agreement to the Court as one which is capable of satisfying the requirements of s 225 of the Native Title Act. A s 87 agreement may be reached on behalf of the State (or Territory), and other parties, without the level of proof required in a contested application. Inherent in parties' agreement to resolve claims by settlement rather than litigation, as in other areas of the law, is a willingness to abide by an outcome without the exhaustive and detailed investigation that accompanies a trial of contested issues of fact and law. The public interest in an outcome of this kind is considerable: see Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26], Rares J. 24 The Court is entitled to rely on the processes established by a State (or Territory) for the assessment of claims to native title and, without abdicating its task of determining that the matters set out in s 225 are present in a particular application, is entitled to proceed on the basis the State (or Territory) has made a reasonable and rational assessment of the material to which it has access in deciding to enter into a s 87 agreement: see, in relation to a similar point with respect to s 223 of the Act, King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Keane CJ). 20 Section 87 of the NTA permits the Court to make a determination of native title consistent with a written agreement between the parties to a proceeding without holding a hearing if it is satisfied of a number of matters, which include: (a) whether the notice period under s 66 of the NTA has ended; (b) that the parties have reached agreement on the terms of order relating to the whole of the proceedings, a part of the proceedings or a matter arising out of the proceedings; (c) the terms of the agreement have been reduced to writing, signed by and on behalf of the parties and filed with the Court; and (d) the Court is satisfied that an order in, or consistent, with those orders would be within the power of the Court.

Consideration 21 I am satisfied that the preconditions to the exercise of the power under s 87 are met. 22 First, I am satisfied that the notification requirements prescribed by s 66 of the NTA have been met. 23 The Native Title Registrar was required to undertake a notification process in accordance with s 66 of the NTA (as applicable at the time). As part of this notification process, the Registrar was required to provide a copy of the application to the relevant State Minister (s 66(2)), and to other appropriate representative bodies (s 66(2A)), as well as to give notice to persons or bodies specified under s 66(3)(a), and to notify the public (s 66(3)(d)). The relevant notice for which each of those persons must be informed must include certain statements depending on the nature of the application. In this case, given it is a claimant application, the notice must state that, given there can only be one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Court, in making its determination, to take into account the person's native title rights and interests in relation to the relevant area (s 66(10)(b)). In addition, a person who wants to become a party to the application must notify the Court in writing within three months of the notification day or, after that time, seek leave from the Court to become a party (s 66(10)(c)). 24 On 13 June 2012, the Native Title Registrar wrote to the Court and confirmed that the Registrar had given notice containing details of the application to the persons and bodies specified in s 66(3)(a) of the NTA. 25 The Registrar also confirmed that they had notified the public of the application in accordance with s 66(3)(d) of the NTA. In accordance with s 66(3)(b), the correspondence from the Registrar enclosed a copy of the notice provided to the persons and bodies specified in subs (3)(a), as well as the public notice specified in subs (3)(d). Both notices specified that any person or entity who wished to become a party to the application was required to apply to the Court to become a party by 26 September 2012 (as specified in s 66(10)(c)). In addition, both notices contained the statement specified in s 66(10)(b). 26 On 8 October 2012, following the closure of the notification period, the Court wrote to the applicants' then-solicitors providing them with a party list. 27 Secondly, I am satisfied that the parties have reached agreement on the terms of the order relating to the whole of the proceedings. 28 I am satisfied that the area covered by the orders does not overlap with the area which is the subject of any other application for determination of native title (s 67(1)) or a previously approved determination of native title (s 68). 29 I have relied upon the parties' submission that a thorough tenure assessment has been undertaken in this matter and for the purposes of consent orders. An agreement has been reached by the parties as to the effect on native title of the various tenures granted and acts done in the determination area. The consent orders record all areas over which native title can be recognised, including as a consequence of ss 47A and 47B of the NTA, together with those areas where native title has been extinguished. 30 The parties have submitted that following the resolution of the overlapping claims, this matter has been resolved by agreement between the parties in accordance with the State of South Australia's Consent Determination Policy: Consent Determinations in South Australia: A Guide to Preparing Native Title Reports (2004) Crown Solicitor's Office. 31 Thirdly, the agreement has been reduced to writing, signed by or on behalf of the parties, and filed with the Court. Signatories include those with interests in the determination area including Telstra Corporation Limited, Amplitel Pty Ltd, Magnetite Mines Ltd, Havilah Resources NL, Mutooroo Pastoral Co Pty Ltd, Worthing Properties Pty Ltd and Lodestone Mines Limited. 32 The agreement comprises the content of the proposed consent determination as well as a Settlement Indigenous Land Use Agreement (the Wilyakali Settlement ILUA). The State and the applicants agree that the proposed consent determination of native title will take effect upon the registration of the Wilyakali Settlement ILUA under Div 3 of Pt 2 of the NTA. 33 Under the terms of the ILUA, the State and the applicants have agreed, pursuant to s 24EB, to validate certain acts which may have been done invalidly in the determination area, and provides a process, as an alternative to Div 3 of Pt 2 of the NTA, pursuant to which the State may undertake certain future acts on native title land within the determination area once the ILUA is registered. 34 The ILUA further provides for compensation and benefits in full and final settlement of the State's existing compensation liability pursuant to the NTA in relation to the determination area. 35 The consent determination and the ILUA are dependent on each other in that the determination describes the position after the adjustments agreed in the ILUA come into force upon registration by the National Native Title Tribunal (NNTT). For this reason, it is agreed between the parties that the consent determination as proposed only comes into effect once the ILUA has been successfully registered on the NNTT's Register of ILUAs. 36 In the event that the ILUA is not registered within eight months of the date of the making of the determination, the consent determination provides for liberty to apply to the Court. 37 I will now consider whether the proposed orders and determination are within the power of the Court. 38 As part of considering whether the Court has jurisdiction to make the orders sought, consideration must be given with respect to the NTA requirements, including whether the Wilyakali people comprise a group in relation to land and waters where the preconditions of s 223 are satisfied, which comprise as follows: 223 Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders 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 or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, 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. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests. Statutory rights and interests (3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests. Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act. Subsection (3) does not apply to statutory access rights (3A) Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants). Case not covered by subsection (3) (4) To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests): (a) in a pastoral lease granted before 1 January 1994; or (b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994. 39 The preconditions of this section have been considered extensively by the High Court, most notably in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422. As submitted by the parties, a threshold requirement for a successful native title determination application is that the evidence demonstrates that there is a recognisable group or society that presently recognises and observes traditional laws and customs in relation to the determination area. In defining that group or society, the following must also be evident: (a) that they are, or are part of, a society united in and by their acknowledgement and observance of a body of accepted laws and customs; (b) 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 of the claimants or a permissible adaptation thereof; and (c) 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 acknowledgment and observance of those laws and customs: Risk v Northern Territory [2006] FCA 404 at [8], [802]-[811]; see also Yorta Yorta at [49]-[56]; [86]-[89]. 40 I am satisfied that the preconditions of s 223 have been met (for the reasons set out at paragraphs [47]-[59] below). 41 Section 225 of the NTA then sets out what a determination of native title must include. Section 225 provides as follows: 225 Determination of native title A determination of native title is 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. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests. 42 Section 94A of the NTA requires that a determination made by the Court must set out the details of the matters mentioned in s 225 of the NTA. 43 I am satisfied that the requirements of s 225 have been met, by reason of the following facets of the consent determination : (a) the external boundaries of the determination area are described (Schedule 1) and set out with particularity those areas where native title exists (Native Title Land) (paragraphs 7-8) and those areas where native title is extinguished (paragraph 9); (b) there is specification, in paragraph 10, of the group of native title holders and the criteria by which they have group membership: s 225(a); (c) the nature and extent of the native title rights and interests in the determination area is set out in paragraph 11. Paragraphs 12-14 describe material limitations on the exercise of those native title rights and interests: s 225(b); (d) the nature and extent of other interests in the Native Title Land is set out in paragraph 15: s 225(c); (e) the relationship between the native title rights and interests in paragraph 11 and those other rights and interests are set out in paragraph 16: s 225(d); and (f) the native title rights and interests are recognised to be non-exclusive in paragraph 11 (subject to paragraphs 12, 13 and 14 of the Determination): s 225(e). 44 The Court is required to be satisfied ultimately that it is "appropriate" to make a proposed determination. This arises from the fact that a determination of native title, even where it is made by consent of the parties, not only binds the parties but the entire world: Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [22]. 45 I am satisfied that it is appropriate to make the proposed orders and determination. 46 I am satisfied that the terms of the proposed determination of native title are clear (as to the determination area, the nature of the native title rights and interests, the recognised nature and extent of other interests in the determination area and how they may co-exist). 47 The Wilyakali people have been recognised in the Coulthard native title determination (referred to above). Furthermore, the evidence referred to above (including the extensive anthropological evidence) provides a probative basis for the applicants making the proposed determination of native title. 48 The evidence satisfies me that the Wilyakali as a sub-group of the Regional Paakantyi Group are defined by broad cognatic descent from their ancestors who owned and occupied the determination area at sovereignty and early contact, and from 'known' named ancestors belonging to more recent history. 49 The members of the claim group can demonstrate their direct link through descent to Wilyakali named ancestors to be the primary land owners of the determination area according to the wider Paakantyi Society's traditional laws and customs. 50 The claimant group can demonstrate that they are descendants (including by adoption) of named apical ancestors Mr Jack Tyler and his niece Ms Minnie Crozier (Bates), Ms Mary Walgu and Mr Outalpa Dick who were descendants of Wilyakali ancestors identified in the record as occupying in the determination area prior to white settlement in 1836. The members of the claim group identify as Wilyakali and are recognised by the other Native Title Holders under those traditional laws and customs as having rights and interests in the determination area. 51 The experts identified early anthropological records that locate Wilyakali people at or geographically close from Oulnina to the SA/NSW border and includes the whole of the following pastoral leases: Aroona West, Benda, Bundera, Canewood, Devonborough Downs, D'Lorah Downs, Eringa Park, Lake Dismal, Maldorky, Mundi Mundi, Pine Creek, Radium Hill, Taltabooka North, Tepco, Tikalina, Wadnaminga, Wawirra, and Wiawera; and portions of Bindarrah, Boolcoomatta, Kalkaroo, Manunda, Mulyungarie, Mutooroo, Netley Gap, Oakbank, Oulnina, Oulnina Park, Quandong, Tiverton, Wompinie, and Yarumba. 52 The agreed boundary with the Ngadjuri reflects the compromise reached for resolution of the formerly overlapping claims and while it does not precisely follow any topographical feature the agreed boundary ensures that certain areas of significance to the Wilyakali people are included in their determination area. This does not prevent a determination being made here by consent of all the parties, providing there is evidence that the criteria under ss 223(1) and (2) of the NTA are met for the proposed determination area. 53 I am satisfied that there has been substantially uninterrupted observance of traditional laws and customs since sovereignty. The State and the Court accepted in Coulthard that the Wilyakali people exercise traditional laws and customs which continue to have a vitality in contemporary society. 54 As submitted by the parties, members of the contemporary Wilyakali group with the proposed determination area have this connection through their laws and customs. Although a number of claimant families live outside of the claim area, some ancestors worked on pastoral leases in the determination area and the current group members have provided evidence supporting their continuing connection through activities undertaken in accordance with traditional laws and customs in and across the area 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 Mura (dreamings) relating to the determination area, including Eaglehawk and Crow and Bronze-winged Pigeon (Marnpi). 55 This exemplifies evidence of land-based oral traditions; namely details of Wilyakali Mura stories (Dreaming), particular access rules and knowledge regarding sites which continue to be observed. The evidence is supportive that the proposed determination area falls within traditional Wilyakali country. Ms Jarvis, in her report in 2020, referred to the evidence of many Wilyakali people including vivid accounts of Ms Maureen O'Donnell (now deceased), the mother of Ms Dulcie O'Donnell and Mr Glen O'Donnell. Ms Maureen O'Donnell described her childhood, being shown and attending sacred sites and being taught and then retelling and teaching the Dreaming stories to her children and grandchildren. The evidence supports the conclusion that there are normative rules and laws which are traditionally-based. 56 I am satisfied that this evidence demonstrates that, despite the unfortunate fact of some cultural losses which have occurred since sovereignty, there is sufficient basis to accept for the purposes of a consent determination that the system of traditional laws and customs presently observed by the Wilyakali people provide them a relevant connection to the proposed determination area. 57 The rights and interests to be recognised are set out in paragraph 11 of the consent determination. 58 These rights and interests are consistent with the rights and interests that would have been observed traditionally. They are also consistent with rights recognised in the earlier Adnyamathanha, Ngadjuri and Wilyakali overlap determination and elsewhere in South Australia. 59 It was submitted by the State that it is satisfied that the native title rights and interests claimed arise from the Native Title Holders' 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. This is because: (a) there is evidence that a number of Wilyakali people continue to have a physical connection with the proposed determination area and continue to access this area for traditional purposes; (b) a number of claimants continue to access the resources of the area. People continue to camp in key places throughout the claim area; and (c) the Wilyakali people have demonstrated knowledge about Wilyakali country and its culturally significant sites and stories. 60 In the joint submissions, the applicants and the State submitted the following (demonstrative of the appropriateness of making the proposed determination): (a) all parties save for Lodestone Mines Limited are legally represented. However, Lodestone Mines has not raised any concerns in relation to the making of the consent determination. (b) the parties have agreed to the nature and extent of the applicants' and other interests in relation to the determination area. (c) the State has played an active role, not only in the negotiation of the consent determination, but the other related determinations. The State acts on behalf of the community generally having regard to the requirements of the NTA and having conducted its own assessment process, in accordance with the Policy, is satisfied that the determination is justified in all the circumstances.

Section 55 requirements 61 Section 55 of the NTA requires that if the Court proposes to make an approved determination of native title and the determination is that native exists, the Court must, at the same time as, or as soon as practicable after it makes the determination, make such determinations as required under ss 56 (concerning holding the native title on trust) or 57 (dealing with the non-trust functions of prescribed bodies corporate). Proposed order 17 is to the effect that native title is not to be held on trust. Accordingly, s 57(2) requires that certain steps must be taken to determine which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions in s 57(3). 62 The parties seek a determination that the "Wilyakali Native Title Aboriginal Corporation" be such a body. That agreed position is supported by an affidavit of Ms Leonora Jamille Aiyana Herweijer. In her affidavit, she deposes that the Wilyakali claim group, at a meeting in Broken Hill NSW on 1 and 2 April 2023, nominated the Wilyakali Native Title Aboriginal Corporation to be their prescribed body corporate and authorised that body as being the body for the proposed determination. On 14 August 2023, that body was registered by the Office of the Registrar of Indigenous Corporations as the Wilyakali Native Title Aboriginal Corporation ICN 10042. Ms Herweijer wrote to, and received consent and/or no objection from, the other parties to this matter that proposed order 18 include the full title of the prescribed body including the ICN number. 63 As a consequence, pursuant to s 57(2)(b), I determine that the Wilyakali Native Title Aboriginal Corporation ICN 10042 is to be a prescribed body corporate to perform the functions prescribed under s 57(3) of the NTA. 64 For these reasons, I am satisfied that it is appropriate to make the proposed orders and the proposed determination of native title.

Conclusion 65 I will make the orders proposed by the parties and I will make a determination of native title as proposed by the parties. 66 By making these orders and the determination, I note that the determination is not creating but rather recognising, under the Australian legal system, the Wilyakali peoples' long-held native title in this land, according to their traditional laws and customs which existed long before British sovereignty. 67 The Court recognises the many parties involved in the making of this agreement and commends its conclusion by agreement. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.

SCHEDULE OF PARTIES SAD 89 of 2022 Respondents Respondent: HAVILAH RESOURCES NL Respondent: LODESTONE MINES LIMITED Respondent: MAGNETITE MINES LIMITED Respondent: AMPLITEL PTY LTD Respondent: TELSTRA CORPORATION LIMITED

(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 and Geothermal Energy Act 2000(SA)

Crown Lands Act 1929(SA)

Native Title Act 1993(Cth)ss 24EB, 47A, 47B, 55, 56, 57, 57(2), 57(2)(b), 57(3), 66, 66(2), 66(2A), 66(3)(a), 66(3)(b), 66(3)(d), 66(10)(b), 66(10)(c), 67(1), 68, 87, 94A, 223, 223(1), 223(2), 225, 225(a), 225(b), 225(c), 225(d), 225(e)

THE COURT NOTES THAT: A. Native Title Determination Application No. SAD 89 of 2022 (formerly SAD 33 of 2012) (the Application) was first lodged with the Federal Court of Australia on 8 February 2012. 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 balance of the area of the Application not covered by the consent determination for the Wilyakali No 2 claim and, as amended to resolve the area of overlap, is referred to as Wilyakali No 1. E. The Application was amended in the form of documents filed on 15 March 2021 and resolved any overlap by forming a common boundary between the Application and the remainder of the formerly overlapping the Ngadjuri Nation No 2 claim (SAD 304 of 2011). F. 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 (Wilyakali 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). G. The Applicant and the State have carried out an analysis of the historical tenure records within the Wilyakali No.1 (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 Wilyakali country at sovereignty. H. 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. 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: THE COURT ORDERS THAT:

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