Sansbury v State of South Australia

Sansbury v State of South Australia - [2023] FCA 196 - FCA 2023 case summary — Zoe

[29]

THE COURT NOTES THAT: A. Native Title Determination Application No SAD 88 of 2022 was first lodged with the Federal Court of Australia on 25 March 2013. B. The Applicant wishes to record its acknowledgement of Tauto Sansbury (deceased) as a former Applicant to this Determination Application and his contributions towards achieving the Orders set out hereunder. C. The Applicant and the First Respondent (State) have negotiated with a view to agreeing to settle the Application without the need to proceed with the trial. Both parties have negotiated in good faith and with full advice from their legal representatives and experts, and have reached a compromise which is set out in an Indigenous Land Use Agreement (ILUA) called the Narungga Nation Determination ILUA and in this determination of native title. This determination will take effect upon the registration of the ILUA as an Area Agreement under Subdiv C of Div 3 of Pt 2 of the Native Title Act 1993 (Cth) (NTA). D. The parties, including the Applicant, the State, the Commonwealth and the other respondents have now reached an agreement as to the terms of a determination of native title to be made in relation to land and waters covered by the Application and as to the terms of proposed orders. E. The Applicant and the State have carried out an analysis of the historical tenure records within the claim area. The tenure position reflected in this Determination represents a compromise that has been agreed between the parties for the purposes of settlement. F. The parties agree that the ILUA: (i) contains the agreement of the Applicant and the State that the vesting of Adjacent land and Subjacent land in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA) is a valid act to which the non-extinguishment principle applies. The effect of registration of the ILUA will be that, pursuant to s 24EBA of the NTA and s 32B of the Native Title (South Australia) Act 1994 (SA), the validity of the vesting will be confirmed, and any extinguishing effect of the vesting will be changed so that the non-extinguishment principle will apply to the vesting of Adjacent land and Subjacent land which is within the Determination Area; and (ii) addresses the native title status of parcels which, in the course of negotiating the tenure schedules to this determination, were agreed by the Applicant and the State to be included in the ILUA. 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. Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, negotiations with respect to a potential agreement to be made pursuant to s 47C(1)(b) of the NTA will be addressed subsequent to this determination. Pursuant to s 13(5)(c) of the NTA the Applicant and the State will seek to revise this determination to reflect any such agreement. 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:

[38]

Other Interests & Relationship with Native Title 22. The nature and extent of other interests in the Native Title Land are: (a) the interests of the Crown in right of the State of South Australia; (b) the interests of the Commonwealth of Australia, if any; (c) in relation to reserves as defined in the National Parks and Wildlife Act 1972 (SA): (i) the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA); and (ii) the rights and interests of the public to use and enjoy those reserves consistent with the National Parks and Wildlife Act 1972 (SA); (d) interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power including, but not limited to, rights and interests granted or recognised pursuant to the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Native Vegetation Act 1991 (SA), Fisheries Management Act 2007 (SA), Landscape South Australia Act 2019 (SA), Mining Act 1971 (SA), and the Petroleum and Geothermal Energy Act 2000 (SA), all as amended from time to time; (e) rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth; (f) the interests of the relevant interest holders in the parcels listed in Part A of Schedule 4 (s 47A land); (g) the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land; (h) the rights and interests of the Australian Maritime Safety Authority (the Authority) as the owner, manager, or operator of aids to navigation pursuant to s 190 of the Navigation Act 2012 (Cth) and in performing the functions of the Authority under s 6(1) of the Australian Maritime Safety Act 1990 (Cth) including to be a national marine safety regulator, to combat pollution in the marine environment and to provide a search and rescue service; (i) the Automatic Weather System (AWS) known as Waberto Point AWS, located within the external boundaries of Allotment 50, Deposited Plan 35082. (j) the rights and interests of all parties to the ILUA; (k) the rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd (ACN 648 133 073), any related bodies corporate and successors in title: (i) as the owner or operator of telecommunications facilities within the Native Title Land; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: A. to inspect land; B. to install, occupy and operate telecommunications facilities; and C. to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (iii) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Native Title Land in performance of their duties; and (iv) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities within the Native Title Land; (l) the rights, interests and entitlements of SA Power Networks (a partnership of Spark Infrastructure SA (No.1) Pty Ltd, Spark Infrastructure SA (No.2) Pty Ltd, Spark Infrastructure SA (No.3) Pty Ltd, CKI Utilities Development Limited and PAI Utilities Development Limited) and its related and successor entities, including its rights, interests and entitlements: (i) to exercise its entitlements and discharge its obligations as the owner and/or operator of electricity infrastructure (as defined in the Electricity Act 1996 (SA)) and telecommunications facilities and infrastructure within the Native Title Land including but not limited to the existing infrastructure identified in Schedule 8 (Existing Infrastructure); (ii) to exercise its entitlements and discharge its obligations as the holder of a licence under the Electricity Act 1996 (SA) and/or as an electricity entity under the Electricity Act 1996 (SA); (iii) to exercise its entitlements and discharge its obligations as the holder of a carrier licence under the Telecommunications Act 1997 (Cth); (iv) to install new electricity and telecommunications infrastructure on the Native Title Land (New Infrastructure) and modify, maintain and repair Existing Infrastructure; (v) under easements, leases or licences (whether registered, unregistered, statutory or otherwise) relating to Existing Infrastructure or New Infrastructure on the Native Title Land including but not limited to the easements identified in Schedule 8 (Easements); (vi) to provide its employees, agents or contractors with access to Existing Infrastructure, New Infrastructure and the Easements on the Native Title Land; and (vii) to the extent permitted by law, to restrain any person from performing any act, or compel any person to perform any act, for the purposes of ensuring that SA Power Networks complies with its obligations under any law, including, but not limited to, excluding any person from entering an area containing Existing Infrastructure or New Infrastructure for the purposes of maintaining the safety of any person and the security and protection of such infrastructure; (m) the rights and interests of each of Yorke Peninsula Council, Wakefield Regional Council, Copper Coast Council and Barunga West Council in their relevant local government areas in the Native Title Land: (i) under the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA); (ii) as an entity exercising statutory powers in respect of land and waters within the Native Title Land; and (iii) in relation to dedicated land placed under its care, control and management pursuant to the Crown Lands Act 1929 (SA) or the Crown Land Management Act 2009 (SA). 23. The relationship between the native title rights and interests in the Native Title Land that are described in paragraph 16 and 20 and the other rights and interests that are described in paragraph 22 (the Other Interests) is that: (a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of the NTA or the Native Title (South Australia) Act 1994 (SA), do not extinguish them. 24. For the avoidance of doubt, the relationship between the Aboriginal-held interests listed in Part A of Schedule 4 and the native title rights and interests in the Determination Area that are described in paragraph 16 is governed by the non-extinguishment principle as defined in s 238 of the NTA.

[42]

The requirements for a consent determination 6 The objects of the NT Act are inter alia to provide for the recognition of native title and to establish a mechanism for determining native title claims: NT Act, s 3. The preamble to the NT Act sets out the considerations that were taken into account by Parliament when enacting the provisions contained in it. As the preamble states, the High Court has rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement and held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands: Mabo v Queensland (No 2) (1992) 175 CLR 1. The NT Act establishes procedures for the just and proper ascertainment of native title rights and interests. As the preamble states, the object of the NT Act is to ensure that, if possible, that is done by conciliation and, if not, in a manner that has due regard to their unique character. 7 Section 87 is central to the conciliation processes established under the NT Act. In cases where an order is made under s 87 it is not necessary for the Court to resolve the claim upon a contested hearing. By their agreement the parties have avoided the expense and inconvenience of a trial and they are to be commended for resolving the claim in the conciliatory way. 8 The Court may make a determination by consent under s 87 of the NT Act provided that its essential conditions are satisfied. 9 It is first necessary that the period specified in the notice given under s 66 of the NT Act in relation to the native title claim has ended: NT Act, s 87(1). That condition is satisfied here. 10 Next, there must be an agreement reached between the parties on the terms of an order in relation to the proceedings (NT Act, s 87(1)(a)(i)) and the terms of the agreement must be in writing, signed by or on behalf of the parties and filed in the Court (NT Act, s 87(1)(b)). Those conditions were met by the filing of the parties' agreement on 6 February 2023. 11 The Court must also be satisfied that it has the power to make an order in, or consistent with, the terms of the agreement (NT Act, s 87(1)(c)) and that it is appropriate to make the orders sought (NT Act, s 87(1A)). I will now explain how those remaining requirements are satisfied.

[43]

The Court has power to make the order 12 The expressions "native title" and "native title rights and interests" are defined in s 223 of the NT Act to mean 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. 13 A determination of native title must set out the detail of the matters mentioned in s 225 of the NT Act: NT Act, s 94A. It defines the expression "determination of native title" 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. 14 The determination sought by the parties specifies those parts of the determination in which native title exists (Schedules 3, 4 and 7) and those parts in which native title has been extinguished (Schedules 5 and 7). In respect of those areas of land and sea where native title exists, the determination: (1) identifies (at [15]) the persons, or each group of persons, holding the common or group rights comprising the native title in the positive determination area; (2) sets out (at [16]) the nature and extent of the native title rights and interests in relation to the area and (at [17] to [21]) the limitations on their exercise; (3) sets out (at [22]) the nature and extent of other interests in the positive determination area; (4) describes (at [23]) the relationship between the native title rights and interests described at [16] to [20] and the other interests described at [22]; and (5) states (at [18]) that the native title rights and interests area do not confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others. 15 I am satisfied that the requirements of s 94A are complied with and that the Court has the power to make the order substantially in the form sought by the parties.

[44]

It is appropriate to make the orders 16 In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J said, of s 87 of the NT Act (at [36]): The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings 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. 17 His Honour went on to say that the primary consideration for the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: at [37]. The Court should be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for the orders to be made: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109. The State's task assumes critical importance for, as French J said in Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (at [3]), a determination as to whether or not native title exists binds not only the parties to the proceedings, but is good against all of the world. 18 In Nelson v Northern Territory (2010) 190 FCR 344 Reeves J said: 12 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. 13. 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 the State party respondent and I do not consider that is what is intended by the provisions of s 87 of the Act. 19 On the material before me I am satisfied that all of the parties to the consent determination have had independent and competent legal advice in the proceedings and that the agreement now before the Court has been reached on an informed basis. It is the culmination of years of investigation and negotiation. As a part of that process, the State and the authorised applicant have agreed upon measures for the payment of compensation for the loss of native title brought about by extinguishing acts. This determination will come into effect upon the registration of that agreement. I am satisfied that it is appropriate to condition the Court's orders in that way. 20 I am also satisfied that the State has thoroughly assessed the claim so as to establish that there is a credible basis for it. To that end, the State considered reports of an archaeologist, an anthropologist and an historical genealogist, commissioned by the applicant. The State then commissioned independent anthropological and historical assessments before forming a view that the determination was justifiable on all of the materials. 21 The State accepts that the Narungga People continue to acknowledge and observe traditional laws and customs giving rise to rights and interests in the land and waters. It is those laws and customs that define the Narungga People as a society. Their observance of their laws and customs in the determination area has continued substantially uninterrupted since sovereignty. Members of the claim group provided evidence supporting their continuing connection with the determination area by activities undertaken in accordance with their traditional laws and customs: speaking for and taking responsibility for country, camping and visiting, hunting, fishing and other sea based activities, sharing cultural knowledge about sites, spiritual practices including smoking ceremonies and the continued teaching of dreaming stories relating to the to the area. 22 The rights and interests set out at [16] of the determination are consistent with the rights and interests that would have been possessed traditionally, for generations before Flinders and Baudin surveyed the shores. 23 As the settlers' "stock runs" traversed the Yorke Peninsula, Aboriginal populations were disrupted and dislocated. In 1867, the Point Pearce Mission was established. The majority of Aboriginal people located at the mission were Narungga. Point Pearce is now run by the Narungga People and remains a significant location for them in ensuring the survival of their cultural identity. The Court sits at Point Pearce today for the purpose of delivering this determination of native title. 24 Consistent with the objectives of the NT Act, the determination now made provides certainty to all persons having rights and interests in the determination area, both in the present day and for generations to come. The parties are to be commended for the considerable effort in resolving the claim in a conciliatory way. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.

[60]

the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide easterly of a portion of land known as Wardang Island (Allotment 100 of Deposited Plan 88262) then generally south-westerly, generally westerly and generally northerly along said line (encompassing any un-named portions of land permanently above Mean High Water Mark immediately adjacent Wardang Island) to its intersection with with a line 100 metres seaward of Lowest Astronomical Tide southerly of portions of land known as Bikini Islets (Sections 1472 and 1473, Out of Hundreds (Maitland) and Allotments 4 and 5 of Deposited Plan 31588), then generally north-westerly, generally north-easterly and generally easterly along said line to its intersection with a line 100 metres seaward of Lowest Astronomical Tide westerly of a portion of land known as Wardang Island (Allotment 100 of Deposited Plan 88262), then generally north-easterly along said line to its intersection with with a line 100 metres seaward of Lowest Astronomical Tide south-westerly of a portion of land known as Boat Rock (Section 860, Out of Hundreds (Maitland) and Allotment 6 of Deposited Plan 31588), then generally north-westerly, generally north-easterly and generally easterly along said line to its intersection with a line 100 metres seaward of Lowest Astronomical Tide northerly of a portion of land known as Wardang Island (Allotment 100 of Deposited Plan 88262), then generally north-easterly along said line to its intersection with with a line 100 metres seaward of Lowest Astronomical Tide south-westerly of portions of land known as Goose Island, Seal Rocks, White Rock Island and Little Goose Island (Sections 878, 879, 1037, 1038, 1039 and 1040 Out of Hundreds (Maitland) and Allotments 7, 8, 9, 10, 11 and 12 of Deposited Plan 31588), then generally westerly, generally north-westerly, generally north-easterly, generally easterly and generally south-easterly along said line to the point Longitude 137.374677 East, Latitude 34.466500 South. Then generally easterly and generally north-easterly in straight lines through the following coordinate points: Longitude East Latitude South 137.375768 34.467166 137.376822 34.467738 137.377909 34.468257 137.379025 34.468724 137.380174 34.469137 137.381372 34.469504 137.382596 34.469818 137.383838 34.470076 137.385053 34.470273 137.386263 34.470411 137.387587 34.470504 137.389044 34.470551 137.390786 34.470553 137.392216 34.470510 137.393738 34.470395 137.394892 34.470255 137.395811 34.470084 137.396527 34.469916 137.397103 34.469737 137.397634 34.469516 137.398809 34.468908 137.399411 34.468555 137.399880 34.468193 137.400338 34.467729 137.400697 34.467262 137.400979 34.466742 137.401217 34.466120 137.401488 34.465195 137.401650 34.464492 137.401757 34.463778 137.401809 34.463054 137.401801 34.462223

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