Starkey v State of South Australia

Federal Court of Australia|2014-09-01|Before: Allsop CJ

INTRODUCTION 1 The Court is asked to make orders declaring that the Kokatha People were and are the traditional owners of the land we are on. It is important to emphasise the nature of the orders sought. They are not to grant the land to the claimant group. They are to declare that the claimant group has and always has had, at least since European settlement, the traditional rights and interests in the land to be recognised by these orders. 2 The orders are made under the Native Title Act 1993 (Cth) (the NT Act). On behalf of all Australian people, it recognised in its Preamble that Aboriginal people inhabited this country for many many years prior to European settlement and were progressively dispossessed of their lands. The Preamble recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the NT Act to be passed to facilitate the recognition by our shared legal system of the native title rights and interests in land which existed at the time of European settlement. 3 The determination is made with the consent of the State of South Australia and of the Commonwealth of Australia and all of the respondents whose interests might be affected by the Orders to be made today. The consent of the State and the Commonwealth indicates that the whole of the Australian community shares in, and supports, recognising that status of the Kokatha People.

THE REQUIREMENT OF THE NATIVE TITLE ACT 15 The period of notice imposed under s 66 has clearly elapsed. A signed copy of the agreed orders has been filed with the Court. The Registrar has given appropriate notice required by s 87A(3) and no objection to the proposed orders has been given. More substantively, ss 87(2) and 87A(4)(a) and (b) require 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 that it would be appropriate to do so. 16 In addition, because the orders seek a determination of native title, they must comply with s 94A of the NT Act. That section requires the proposed orders to set out details of the matters mentioned in s 225 of the NT Act. 17 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. 18 The term "native title rights and interests" is defined in s 223(1) of the NT 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. 19 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. 20 In King on behalf of the Eringa Native Title Clan Group v State of South Australia [2011] FCA 1387 Keane CJ affirmed the practice of the Court 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. As Keane CJ said, that is because the relevant State or Territory acts in the public interest and as the public guardian in doing so. His Honour noted that the State or Territory 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. Consequently, 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. I have had the benefit of such joint submissions in this instance. 21 That approach reflects the comments of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 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. 22 I respectfully adopt what Keane CJ said in King at [23]-[25].

CONSIDERATION 23 I have carefully considered the joint submissions. They describe the process by which the parties have come to their consensus. It is clearly an appropriate one. There is no reason to doubt the consensus, or to question the matters accepted by the parties underlying that consensus. 24 Upon the basis of the material referred to in the joint submissions, and as it is described there, I am satisfied of the following matters. 25 The Determination Area is located in the north-west pastoral district of the State of South Australia. The area to be covered by the Consent Determination is approximately 30,346 km2 and lies to the north and north-west of Port Augusta between two salt lakes, Lake Torrens to the east and Lake Gairdner to the west. It includes the towns of Roxby Downs, Andamooka, Woomera and Pimba. 26 The Determination Area is characterised by gibber plain, salt lakes and sand dunes. It is extremely barren, with very low levels of regional rainfall and very little reliable permanent water when compared with neighbouring regions. 27 The Determination Area includes many sites of significance to the native title holders which continue to play an important role in the observation and maintenance of law and custom across the Determination Area. 28 There is evidence that the native title holders and their ancestors have known and recounted Dreaming narratives that connect them with the land and waters of the Determination Area. This knowledge has been passed down from generation to generation and connects the native title holders to the Determination Area. The Dreaming narratives connected to the Determination Area include Wati Nyiru, Kalta, Kunkaralinya or Minyma Tjuta (Seven Sisters), Urumbulla or Kinika (Native Cat) and other Dreamings the naming of which can, depending upon the circumstances, cause offence. Knowledge and belief in these Dreamings and sites and tracks associated with these Dreamings provide a continuing relationship between the native title holders and the Determination area. The native title holders exercise authority over and responsibility for these Dreamings, and the sacred sites and tracks which are associated with them. 29 The majority of the Determination Area is covered by pastoral lease and was first settled by non-indigenous inhabitants in the late 19th century. Approximately one third of the Determination Area is covered by the Woomera Prohibited Area, which was first established in 1947 as a joint British-Australian venture and has been the site of long range weapons testing, nuclear weapons testing, rocketry and multiple satellite launches. 30 The Determination Area is also highly productive for minerals and includes the Olympic Dam Mine, which is the site of the world's largest known uranium deposit and the world's fourth largest copper deposit. 31 A thorough tenure assessment has been conducted and agreement has been reached by the parties as to the extinguishing effect of the various tenures granted in the Determination Area for the purposes of the making of consent orders. Under this Consent Determination native title will be recognised over 99% of the determination area. . 32 As this proceeding originated as two separate native title claims, evidence was separately considered in relation to each of those claims, although much of the evidence was relevant to both. 33 The evidence comprised of a large volume of reports and other material which was prepared for the purposes of the Kokatha Overlap proceeding, as well as affidavit evidence from members of the claim group. The State also conducted its own historical investigations. 34 The evidence was assessed by the State with the expert assistance of Dr Lee Sackett. Dr Sackett is a consultant anthropologist who has substantial experience in native title matters. 35 Due to the complexity of this matter, and the volume of anthropological material, both Senior and Junior Counsel were engaged by the State to review and consider the evidence. 36 Following the State's assessment of the evidence, a Position Paper in relation to the Kokatha Uwankara (Part A) native title claim was distributed to all other respondent parties to that claim in November 2012, advising that the State was prepared to enter into settlement negotiations and the basis why. 37 A further Position Paper in relation to Kokatha Uwankara No. 2 native title claim was provided to respondent parties in May 2014. 38 All respondent parties to the combined proceedings have either signed the proposed Consent Determination to indicate their consent, have been deemed not to have an interest in relation to Part A of the proceedings, or have removed themselves as parties.

Section 223 of the NT Act 39 Section 223 of the NT Act defines native title as: (1) … the 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. 40 In Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 at [36]-[38] Mansfield J reviewed the decisions about s 223(1) of the NT Act. His Honour noted that a threshold requirement is that the evidence shows that there is a recognisable group or society that presently recognises and observes traditional laws and customs in the Determination Area. In defining that group or society, the following must also be addressed: (1) that they are a society united in and by their acknowledgement and observance of a body of accepted laws and customs; (2) that the present day body of accepted laws and customs of the society is in essence 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 acknowledgment and observance of those laws and customs. (4) the claimants must show that they still possess 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. 41 The evidence supports the conclusion that the Kokatha are a recognisable group, forming part of the wider Western Desert Society, for the purpose of a native title consent determination. The Western Desert Society has been recognised by the Federal Court as an appropriate society for the purposes of native title. The Kokatha form the south-easternmost sub-group of the Western Desert Society. They are linked into the wider society through a common language and a shared religious life that includes ceremonial processes that traverse much of the wider Western Desert area. The inclusion of Kokatha as part of the Western Desert society is widely supported by the established anthropological and linguistic literature. 42 In relation to the claim, the evidence shows that in accordance with Western Desert law, the concept of nguraritja applies to the claim area. It also shows that people can come to be nguraritja for a place other than by being born in that place or being descended from ancestors born in that place. Whilst the evidence says that there is an increasing focus on descent as a means of obtaining rights in the claim area, the evidence also indicates that there are other avenues for gaining rights and interests in land consistent with Western Desert Law, which include birth in the claim area; long term occupation and religious knowledge of the land; and the possession of significant geographic and culturally confidential religious knowledge relating to the claim area. 43 The proposed Consent Determination describes, in accordance with the Evidence, those persons who are members of the native title holding group. The description is sufficient to identify the native title holding group and its society, and satisfies the requirements of the NT Act. 44 The evidence also addresses the relationship between the claim group's society and the society in the Determination Area at sovereignty. 45 The relevant date for the acquisition of sovereignty in the Determination Area is 1788. However, in this case the earliest historical records appear to date from the 1860s and 1870s. 46 One of the main expert anthropological reports provided by the applicant was prepared by Dr Neale Draper, Fiona Sutherland and Linda Williams (the Draper Report). This report contains a series of maps indicating people's links to the claim area across time. The earliest map shows information known from the time of 1855-1875. It shows the birth places of two known ancestors. One was born in Ooldea (to the west of the claim area) in approximately 1865, the other at Mt Eba (just to the north-west of the claim area) sometime between 1855-1865. Neither of those places are within the claim area, but both are within country in relation to which it has been previously accepted by the State and by this Court that Western Desert law and custom applies. 47 A further map shows information from 1875-1895. During this period, the map shows that three known Kokatha ancestors were born within the claim area. Over the next 40 year period, the evidence indicates that the number of ancestors born on the claim area increases, with a further 12 ancestors identified as being born on the claim area during that period (ie between 1895 and 1935). 48 Although the evidence is not definitive to show that the named ancestors provide an ultimate connection with the claim area dating back to sovereignty, it is well known that Western Desert law and custom permits the obtaining of rights in a particular area through mechanisms other than descent from ancestors who were themselves born on the area. Therefore, establishing a genealogical connection to ancestors who can be shown to be born on the claim area at or around the time of sovereignty is not critical. 49 For the purpose of reaching an agreement under ss 87 and 87A of the NT Act, the State after its careful examination accepts the evidence of the Kokatha that the descendants of the named ancestors continue to hold rights and interests in relation to land in the claim area under the traditional laws and customs of the Western Desert society on the following basis: there is basis to accept that the claim area was traditionally inhabited by Western Desert peoples and, in particular, by the Kokatha; the traditional laws and customs of the Western Desert enable the transmission of traditional rights and interests in relation to land by means other than strict descent; the named ancestors are recognised by contemporary Kokatha claimants as having had important connections with and rights and interests in connection with land in the claim area; and a generally continuous connection with the named ancestors and their descendants and the claim area can be established from the evidence. 50 The evidence included maps and summaries of connections between descendants of the named ancestors and sites in the claim area, and genealogical information for each of the named ancestors including profiles of the named ancestors and their descendants. From this material the State was satisfied that, in respect of each of the named ancestors, their families have maintained a requisite connection to the claim area. In my view, that material as described in the joint submission does support that view. 51 It is also necessary to consider whether there has there been substantially uninterrupted observance of traditional laws and customs since sovereignty. 52 The material shows that the Western Desert Society has had a continuous existence and vitality since sovereignty, and that the peoples of the Western Desert together constitute a "society" in the relevant sense. It also supports a conclusion that the Kokatha are, and traditionally and historically have been, accepted to be part of the Western Desert society, and that the Determination Area or a significant portion thereof was occupied by Western Desert People at Sovereignty. Hence, the material supports a conclusion that key elements of Kokatha law and custom have continued substantially uninterrupted since sovereignty. 53 There are a number of aspects to the religious knowledge evidenced in the material submitted by the Applicant that goes towards establishing that certain laws and customs have continued amongst the Kokatha people, including the continued transmission of religious knowledge; the ongoing initiation of men in accordance with Western Desert initiatory practices; the participation in ceremonial processes in which religious sites are celebrated; and the maintenance of gender and other restrictions relating to their religious knowledge. 54 Many of the Tjukurpa identified by the Kokatha claimants in the connection material as current today are also mentioned in the historic literature in connection with the Kokatha, and link the claim area with the lands and peoples of the Western Desert. This supports a conclusion that the Kokatha connection to the claim area, through the laws and customs of the Western Desert Society, is "traditional" in the relevant sense. 55 There is evidence to suggest that some of the high level and detailed knowledge of certain Tjukurpa associated with the claim area may have been transmitted by the Kokatha to senior men and women of the wider Western Desert group. However, the material available to the State also indicates that those senior Western Desert men who hold the most detailed information in relation to those Tjukurpa at present, including knowledge of the song cycles associated with them, see their role as guardians of the knowledge, which is being returned to the Kokatha over time. The material indicates that this "custodianship" of knowledge and sacred objects, although necessitated by the effects of non-Aboriginal settlement, has been accommodated within the traditional normative system of the Western Desert. It is consistent with the participation of senior Western Desert men in initiation rituals across the Western Desert groups. For this reason the State is satisfied that this is not an indication that the laws and customs of the Kokatha generally, or in relation to these particular Tjukurpa, are not traditional or that the Kokatha have not, in the sense recognised by the Western Desert society, maintained their connection (or particular connections through those Tjukurpa) with the land. 56 The material also suggests that the criteria by which rights and interests in connection with land are recognised appear now to place greater emphasis on birth, residence and cultural standing of antecedents, and less emphasis on the claimants own birthplace and full-time residence on country. However, for the purpose of a Consent Determination I accept that this change in emphasis is still consistent with traditional laws and customs, rather than a complete break from traditional conceptions of what is required to be nguraritja. 57 Consequently, on the material available to the State and the consensus of the parties indicating the State's view is a proper one, I accept that requirement of s 223 is also satisfied. 58 There must also be a connection to the Determination Area by traditional laws and customs. 59 The material indicates that under the laws and customs of the Kokatha, consistent with other Western Desert societies, a landowner is termed nguraritja. Kokatha people consistently express their connection to their own country (ngura) as being a fundamental part of their identity. 60 The material indicates that, under the laws and customs of the Kokatha, a person becomes nguraritja for land by reason of one or more of the following: he or she was born on the claim area (including, if the person was born in a hospital, the place where they would otherwise have been born); he or she has a long term physical association with the claim area and consequent knowledge of the country; he or she possesses significant geographic and culturally confidential religious knowledge relating to the claim area; he or she possesses ancestral connection with the claim area, in that his or her parent or grandparent was born in that country, had a long term physical association with that country and/or possessed significant geographic and religious knowledge relating to the claim area; and because he or she identifies as nguraritja and is recognised by other nguraritja as having that status. This formulation is very similar to that for other Western Desert groups who have determinations recognising their native title. 61 There is considerable evidence in the Reports and Affidavits that a number of members of the claim group have religious knowledge of the claim area and have spent significant periods of time on the claim area. Evidence is given of a number of cultural and religious sites in the claim area associated with various Tjukurpa, and of claimants performing ritual and ceremonial activities associated with those sites. 62 The material available to the State is that there are restrictions on both knowledge, and on access to places of significance in the claim area, along both gender and initiatory lines. It is clear that there is religious knowledge that is regarded as exclusively men's business or exclusively women's business. There are also rules about restrictions on access to land. There is evidence from Kokatha men that they cannot access certain women's sites, and from Kokatha women about having to avoid certain places that are related to men's law. Much of the material was itself subject to gender restrictions. 63 Kokatha men participate in Western Desert initiations. The evidence suggests that since the 1980s there has been a steady increase in the number of Kokatha men who have been initiated (an initiated man is known as a wati), although there have always been Kokatha watis. The initiation ceremonies are conducted by Western Desert senior law men, including Kokatha. The evidence suggests that this is consistent with the participation of senior Western Desert men in initiation rituals across the Western Desert groups. 64 Given that the rights and responsibilities of nguraritja are referable to particular land or sites across the claim area, it follows that there is a connection by the traditional laws and customs between nguraritja and the land. I agree with the State on the description of the material available to it that there is ample material from which it can be concluded, for the purpose of reaching an agreement under ss 87 and 87A of the NT Act, that the Kokatha presently observe a system of laws and customs and that according to those laws and customs the Kokatha have a relevant connection to the claim area. 65 Finally, in a substantive sense, it must be shown that the relationship between the traditional laws and customs of the relevant society and the rights and interests claimed by the Applicant. 66 The rights and interests to be recognised are set out at paragraph 8 of the Consent Determination agreed by the parties. 67 The rights and interests recognised are consistent with the rights and interests that would have been observed traditionally. They are also consistent with rights recognised by the Federal Court elsewhere in South Australia. 68 The applicant submits that, although there are no areas within the Determination Area where exclusive native title rights will be recognised due to the historical grants of pastoral leases and other tenures across the entire Determination Area, but for those historical grants the Kokatha People would have enjoyed an entitlement to possession, occupation, use and enjoyment of the Determination Area to the exclusion of all others. 69 There is evidence that antecedents of the claim group, as well as contemporary claimants and their families, have lived and/or spent extended periods of time on the claim area, including at Andamooka and at various stations across the claim area, and continue to do so. There is evidence that a number of claimants continue to regularly access and move about the claim area, including for the purpose of camping, hunting and gathering, and that their actions whilst undertaking these activities are governed by traditional laws and customs. 70 There is evidence on resource use on the claim area including the following: hunting (kangaroo (malu), bush turkey, various lizards (kalta, angkarta, mita) - around Lake Torrens, Pernatty Lagoon, Woomera, Eucloo, Island Lagoon, Purple Downs, Glendambo, north of Roxby Downs, Andamooka, South Gap, Cooteabera, Illaroo, Yeltacowie, Wirraminna ; collecting eggs from emus and water birds; collecting ochre and other minerals for use in ceremony; and collecting plant resources from the claim area including around Woomera, Andamooka, Coorlay Lagoon, Roxby, Parakilya and South Gap. 71 There is also evidence of the transmission of knowledge about the Determination Area, and of the maintenance of sites and conducting ceremonies at sites on the claim area. The evidence also suggests that the claimants perceive themselves as having a responsibility to a wider group, namely the Western Desert society, to look after the claim area. Again, this is consistent with general practice within the Western Desert Bloc. 72 There is some evidence that known relatives of contemporary claimants are buried on the claim area. 73 Having regard to the evidence referred to in the joint submissions, it is clearly appropriate to accept that the native title rights and interests claimed arise from the claimants' 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. 74 Section 225 of the NT Act has certain prescriptions about what the Consent Determination must include. I accept that the proposed Consent Determination complies with each requirement of that section. 75 It describes the external boundaries of the Determination Area (paragraph 2), and sets out with particularity those areas where native title exists (Native Title Land) (paragraph 3), and those areas within the Determination Area where native title is extinguished (paragraphs 4). 76 For the purpose of s 225(a) of the NT Act, paragraph 7 of the proposed Consent Determination defines the group of native title holders and the criteria by which they have group membership. 77 For the purpose of sesction 225(b) of the NT Act, paragraph 8 of the proposed Consent Determination sets out the nature and extent and of the native title rights and interests in the Determination Area. Paragraphs 9 to 11 set out the general limitations on their exercise. 78 For the purpose of s 225(c) of the NT Act, paragraph 12 of the proposed Consent Determination sets out the nature and extent of other interests in the Native Title Land. The content of this paragraph has been informed through tenure searches undertaken by the State and input from other respondent parties to the claim. There has been ample opportunity for any other interest-holders in the area to identify themselves and join as parties to the claim. The State's comprehensive tenure searches have not identified any other relevant interest holders in the Determination Area. 79 For the purpose of s 225(d) of the NT Act, paragraph 13 of the proposed Consent Determination describes the relationship between the native title rights in Paragraph 8 and those other rights in paragraph 12. 80 For the purpose of s 225(e) of the NT Act, it is recognised that the native title rights and interests recognised in the Determination are non-exclusive. 81 Overall, as I have noted, it is clear that agreement has been reached between the principal parties to these proceedings on the terms of the Consent Determination and signed copies of that Determination have been filed with the Court. Those parties include the South Australian Native Title Services Ltd, which is the native title service provider for the Determination Area, the Commonwealth of Australia, the Municipal Council of Roxby Downs, Andamooka Progress and Opal Miners Association, Telstra Corporation Limited, SA Power Networks, BHP Billiton Olympic Dam Corporation Pty Ltd and a number of represented pastoral and mining interests. 82 I am therefore satisfied on the basis of the evidence that it is appropriate, and within power, for the Court to make the proposed orders pursuant to ss 87 and 87A of the NT Act. 83 The Kokatha Uwankara native title claim was filed in this Court on 18 June 2009, and the Kokatha Uwankara No 2 claim was filed in October 2012. Full notification by the National Native Title Tribunal under s 66 of the NT Act (using tenure data provided by the State current at the time) closed on 20 January 2010 in relation to the Kokatha Uwankara native title claim and on 21 August 2013 in relation to the Kokatha Uwankara No. 2 native title claim. On 8 August 2014, Mansfield J made orders requiring all respondent parties to update their address for service and confirm their respondent party status with the Court by 11 August 2014. Any respondent party who did not comply with those orders was deemed to not have an interest in Part A of these proceedings. 84 The following parties complied with those Orders and have signed the Minute of Consent: (1) The Applicant (2) The State (3) The Commonwealth of Australia (4) Municipal Council of Roxby Downs per their legal representative (5) Adnyamathanha People (6) The following mining respondents per their legal representatives: BHP Biliton Olympic Dam Corporation Pty Ltd Golden Cross Operations Monax Mining Oz Exploration Oz Minerals Carapateena Oz Minerals Prominent Hill OZM Carapateena Straits Exploration Tasman Resources The following pastoral respondents per their legal representatives: Buckleboo Nominees Pty Ltd Greenfield Pastoral Company Ltd Colin Greenfield Douglas Maxwell Greenfield Robert William Greenfield Handbury Asset Management Pty Ltd Inglewood Pty Ltd Colleen Mary Manning Paul Stephen Manning Unalla Pastoral Co Pty Ltd (7) Telstra Corporation limited per their legal representative (8) SA Power Networks per their legal representative (9) Andamooka Progress and Opal Miners Association per their legal representative 85 Accordingly, it is appropriate for the Court to make the orders sought. In fact, most of the parties to the Determination have had independent and competent legal advice in the proceeding. There are several respondents who were not legally represented. There is no reason to believe that the lack of representation will have disadvantaged any unrepresented respondent such that a final determination should not be made. 86 A full tenure history of the claim area was provided by the State, and made available to all the parties to the claim. The State has carried out a detailed analysis of both historic and current tenure which informed the consent determination negotiations. This has allowed the State and the Applicant to agree those areas where native title has been extinguished by prior grant of tenure and to record those areas with specificity in the Consent Determination. These are recorded in Schedule 5 to the proposed Consent Determination. 87 I note that, immediately following the making of the proposed Determination, the State, BHP Billiton Olympic Dam Corporation Pty Ltd and the nominated native title holding body will execute the Kokatha Settlement Indigenous Land Use Agreement (ILUA). Under the terms of this ILUA the Kokatha people have consented to surrender their native title rights over a number of land parcels which are described at Schedule 4 to the proposed Consent Determination. The surrender and consequent extinguishment of native title over those areas will take place upon the registration of the ILUA by the National Native Title Tribunal. This is recorded at paragraph 5 of the Consent Determination. 88 The Kokatha Settlement ILUA will resolve a number of issues between Kokatha and BHP Billiton Olympic Dam Corporation Pty Ltd and provides native title consent to future operations associated with the Olympic Dam mine. 89 The Kokatha Settlement ILUA provides for a process, as an alternative to Division 3 Part 2 of the NT Act, pursuant to which the State may undertake certain future acts on Native Title Land in the Determination Area. 90 The Kokatha Settlement ILUA also addresses issues surrounding past Opal Mining in the Andamooka Precious Stones Field and provides native title consent to the carrying out of agreed Opal Mining activities in the Andamooka Precious Stones Field into the future. 91 In addition, the Kokatha Settlement ILUA addresses the provision of compensation in full and final settlement of the State's existing compensation liability pursuant to the NT Act in relation to the Determination Area. 92 Those are appropriate matters to have addressed.

Conclusion 93 The NT Act encourages the resolution by agreement of claims for determinations of native title. For the reasons set out above, the State and the Applicant consider that the proposed Consent Determination, in conjunction with the Kokatha Settlement ILUA, is appropriate and should be made in this proceeding. I accept that submission. By signing the Minute of Consent Determination of native title, the other parties to the proceeding have indicated their agreement. 94 I accordingly make the Determination recognising the native title of the Kokatha People over this extensive claim area. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Native Title Amendment Act 1998(Cth)

Natural Resources Management Act 2004(SA)

(SA), Crown Lands Act 1929(SA)

(SA), Development Act 1993(SA)

(SA), Mining Act 1971(SA)

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

(Cth), the Telecommunications Act 1975(Cth)

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

Crown Lands Act 1929(SA)

Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011(SA)

Local Government Act 1934(SA)

Crown Lands Management Act 2009(SA)

Petroleum and Geothermal Energy Act 2000(SA)

Starkey v State of South Australia [2014] FCA 924 CORRIGENDUM

Paragraph 13 of the Orders made on 1 September 2014 be amended to read as follows: "The relationship between the Native Title Rights and Interests in the Native Title Land that are described in paragraph 8 and the other rights and interests described in paragraph 12 (the Other Interests) is that: …" I certify that the preceding (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

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