Sumner on behalf of the Ngarrindjeri People and Birtwistle-Smith on behalf of the First Nations of the South East #2 v State of South Australia [2025] FCA 1272

Post and Telegraph Act 1901 (Cth)

Telecommunications Act 1975 (Cth)

Telecommunications Act 1991 (Cth)

Telecommunications Act 1997 (Cth)

Crown Land Management Act 2009 (SA) s 70

Crown Lands Act 1929 (SA) s 5

Electricity Act 1996 (SA)

Fisheries Management Act 2007 (SA)

Harbors and Navigation Act 1993 (SA) s 15

Landscape South Australia Act 2019 (SA)

Local Government Act 1934 (SA)

Local Government Act 1999 (SA)

Mining Act 1971 (SA) s 6

National Parks and Wildlife Act 1972 (SA) s 34B

Native Title (South Australia) Act 1994 (SA)

Native Vegetation Act 1991 (SA)

Petroleum and Geothermal Energy Act 2000 (SA) s 4

Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474

Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1

Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; (2001) 115 FCR 109

Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1514

The Nyamal Palyku Proceeding (No 7) [2023] FCA 528; (2023) 296 FCR 169

Ward v State of Western Australia [2006] FCA 1848

Counsel for the Commercial Fishing Licence Holders and South Australian Apiarists Association Inc:

Solicitor for the Commercial Fishing Licence Holders and South Australian Apiarists Association Inc:

Counsel for Telstra Corporation Limited and Amplitel Pty Ltd:

Telstra Corporation Limited and Amplitel Pty Ltd did not appear

Counsel for the Commercial Fishing Licence Holders:

Solicitor for the Commercial Fishing Licence Holders:

Counsel for Telstra Corporation Limited and Amplitel Pty Ltd:

Telstra Corporation Limited and Amplitel Pty Ltd did not appear

STATE OF SOUTH AUSTRALIA (and others named in Schedule 10)

FIRST NATIONS OF THE SOUTH EAST #2 NATIVE TITLE CLAIM

ANDREW BIRTWISTLE-SMITH (and others named in Schedule 10)

STATE OF SOUTH AUSTRALIA (and others named in Schedule 10)

1. Native Title Determination Application No SAD 6027 of 1998 (Ngarrindjeri claim) was filed with the National Native Title Tribunal on 6 July 1998. The Application was amended on 30 September 2016 to reduce the area covered by the Application to exclude land and waters seaward of the Low Water Mark.
2. Native Title Determination Application No SAD 180 of 2017 (FNSE #2 claim) was filed pursuant to s 61 of the Native Title Act 1993 (Cth) (NTA) on 7 July 2017, in relation to some of the land and waters also covered by the Ngarrindjeri claim.

1. A consent determination of native title in respect of the portion of the Ngarrindjeri claim not overlapped by the FNSE #2 claim (Ngarrindjeri Part A claim) was made by Justice White on 14 December 2017: Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1514 (Ngarrindjeri Part A Determination).

1. Each of the Applicants, the State of South Australia and the other Respondents reached an agreement as to the terms of a determination which is to be made in relation to land and waters covered by the remaining part of the Ngarrindjeri claim (Ngarrindjeri Part B claim) and the whole of the FNSE #2 claim without the need to proceed to a hearing.
2. The terms of the agreement:

(a) involve the making of consent orders for a determination pursuant to s 87 and s 94A of the NTA; and

(b) were recorded in a Minute of Proposed Consent Determination of Native Title.

1. The agreement was accompanied by the Ngarrindjeri Part B & First Nations of the South East #2 Indigenous Land Use Agreement between the State and the Applicants (ILUA), and an agreement for the purposes of s 47C of the NTA between the State, the Applicant for the FNSE #2 claim and the Applicant for the Ngarrindjeri Claim executed on 20 November 2024 (Section 47C Agreement), on which some aspects of the agreement reflected in the Minute were based.
2. The Ngarrindjeri Part B claim and the FNSE #2 claim were each amended on 12 December 2024 to enable the Applications to be brought and determined over areas subject to the Section 47C Agreement.
3. The ILUA was entered on the Register of Indigenous Land Use Agreements on 14 February 2025.
4. The Applicants and the State carried out a comprehensive analysis of the tenure records for the Determination Area for the purpose of determining where native title exists. Other respondent parties considered and agreed the tenure as relevant to their interests in the Determination Area. The tenure position reflected in the Determination, and the accompanying ILUA and the Section 47C Agreement represents a negotiated outcome that has been agreed between the parties.
5. The parties acknowledge that, upon the making of the Determination, some members of both the Ngarrindjeri Part B and FNSE #2 claim groups, 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.
6. The Applicants confirm that the Nori Native Title Aboriginal Corporation (ICN: 10324) has been nominated pursuant to s 57 of the NTA to be the prescribed body corporate for the Native Title Holders.

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 pursuant to s 87 of the NTA:

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1. There be a determination of native title in the Determination Area in the terms set out at paragraphs 6 to 19 below (Determination).
2. The Applicants, the State or any other respondent have liberty to apply on 14 days' notice to a single judge of the Court:

(a) to establish the precise location and boundaries of any Public Works (and any adjacent land and waters for the purposes of s 251D of the NTA) identified or otherwise referred to in item 3 of Schedule 5;

(b) to determine the effect on native title rights and interests of any Public Works referred to in item 3 of Schedule 5.

1. The native title is not to be held in trust.
2. Nori Native Title Aboriginal Corporation (ICN: 10324) is to:

(a) be the prescribed body corporate for the purposes of s 57(2) of the NTA; and

(b) perform the functions mentioned in s 57(3) of the NTA after becoming the registered native title body corporate in relation to the Native Title Land.

1. In this Determination, including its Schedules:

(a) unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Pt 15 of the NTA;

(b) "Adjacent land" and "Subjacent land" have the meaning given to them in the Harbors and Navigation Act 1993 (SA);

(c) "Native Title Holders" means those persons described in paragraph 12;

(d) "Native Title Land" means the land and waters within the Determination Area referred to in paragraphs 8 to 10;

(e) in the event of an inconsistency between a written description of an area in a schedule and the depiction of that area on the maps in Schedule 2, the written description shall prevail.

1. The Determination Area means the area described in Schedule 1.

Areas within Determination Area where native title exists (Native Title Land) (s 225 NTA)

1. Subject to items 1, 2, 3 and 4 of Schedule 5, native title exists in the land and waters described in Schedules 3 and 4, to the extent that the land and/or waters are within the Determination Area.
2. Sections 47A, 47B and 47C of the NTA apply to those parcels or parts of parcels described in Schedule 4. Save for public works in areas subject to s 47A or s 47B of the NTA and subject to the terms of the Section 47C Agreement, any prior extinguishment of native title rights and interests over those areas is disregarded and native title exists in those parcels or parts of parcels in accordance with the terms of this Determination.
3. In accordance with the agreement recorded in the ILUA (referred to in Note F), native title exists, subject to the terms of these Orders, in the Adjacent land and Subjacent land within the Determination Area that is vested in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA), including the areas identified in Schedule 8 (Part A) but excluding those areas, if any, identified in Schedule 8 (Part B).

Areas within Determination Area where native title does not exist (s 225 NTA)

1. Native title has been wholly extinguished and therefore does not exist in the land and waters comprised in those areas described in Schedule 5. However, Schedule 5 does not include public works constructed, established or situated after 23 December 1996, which have had such effect as has resulted from Pt 2, Div 3, of the NTA or as agreed pursuant to the ILUA or the Section 47C Agreement.

1. The native title in the Native Title Land is held by the Native Title Holders as identified in Schedule 6.

1. The nature and extent of native title rights and interests in relation to the land set out in Schedule 4 Part A (being areas where extinguishment of native title rights and interests is to be disregarded in accordance with s 47A of the NTA) is the right to possess, occupy, use and enjoy the land and waters to the exclusion of all others.
2. The nature and extent of the native title rights and interests in the Native Title Land other than the land set out in Schedule 4 Part A, are the non-exclusive rights being:

(a) a right of access to the land and waters;

(b) a right to live on, use and enjoy the land and waters;

(c) a right to take, use, share and exchange the resources of the land and waters including by fishing, hunting and gathering;

(d) a right to use the natural water resources;

(e) a right to conduct cultural activities including births, funerals, and burials;

(f) a right to visit, maintain and protect places of importance under traditional laws, customs and practices on the land and waters;

(g) a right to teach traditional laws and customs to each other on the land and waters; and

(h) a right to be accompanied on the land and waters by those people who, though not Native Title Holders, are:

(i) spouses or partners of Native Title Holders; or

(ii) people required or permitted by traditional law and custom for the performance of ceremonies or cultural activities.

Qualifications on the native title rights and interests (ss 225(b), (e) NTA)

1. The native title rights and interests described in paragraph 14 do not confer possession, occupation, use and enjoyment of the land and waters on the Native Title Holders to the exclusion of others.
2. The native title rights and interests are subject to and exercisable in accordance with:

(a) the traditional laws and customs of the Native Title Holders; and

(b) the valid laws of the State and Commonwealth, including the common law.

The nature and extent of any other interests (s 225(c) NTA)

1. The nature and extent of other interests in the Native Title Land are set out in Schedule 7 (Other Interests).

The relationship between native title rights and other interests (s 225(d) NTA)

1. Except as otherwise provided by law including, where applicable, subject to the operation of s 34B of the National Parks and Wildlife Act 1972 (SA), the relationship between the native title rights and interests in the Native Title Land that are described in paragraphs 13 and 14 and the Other Interests described in paragraph 17 is that:

(a) the determination does not affect the validity of the Other Interests;

(b) 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 they have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and

(c) 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), does not extinguish them.

1. For the avoidance of doubt, the relationship between:

(a) 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 13; and

(b) the Other Interests that exist in the areas listed in Part C of Schedule 4 and the native title rights and interests that are described in paragraph 14.

is governed by the non-extinguishment principle as defined in s 238 of the NTA.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Schedule 1: Location of and areas comprising the Determination Area

Schedule 3: Land and Waters where native title exists (Native Title Land)

Schedule 4: Areas where extinguishment of native title is to be disregarded due to the operation of ss 47A, 47B or 47C of the Native Title Act 1993 (Cth)

Schedule 5: Areas where native title is wholly extinguished

Schedule 8: Harbors and Navigation Act Land

**Schedule 1 - Location of and areas comprising the Determination Area

The Determination Area covers all the land and waters within the external boundary described as:

Commencing at the intersection of the centreline of Woods Well Road road reserve with a straight line between the intersection of the south-western boundary of the Dukes Highway road reserve with Longitude 140.022296 East and the point Longitude 140.117237 East, Latitude 36.021596 South; being the easternmost point on the external boundary of Native Title Determination of SAD 6027/1998 Ngarrindjeri and Others Native Title Claim (SCD2017/002) and a point on the northern boundary of Native Title Application SAD 180/2017 First Nations of the South East #2 native title claim (SC2017/001) and extending generally south-easterly, generally south-westerly, generally north-westerly and generally north-easterly along the external boundary of that application, further described as:

Then generally south-easterly, generally southerly and generally south-westerly in straight lines through the following coordinate points:

then in a straight line to the intersection of a line between Longitude 139.962581 East, Latitude 36.625639 South and Longitude 139.824555 East, Latitude 36.668949 South with Mean Low Water Mark (south of the coastal rock formation known as The Granites). Then generally north-westerly along the Mean Low Water Mark, across the mouths of any waterways flowing into the Southern Ocean between the seaward extremities at the Mean Low Water Mark of each of the opposite banks of each such waterway to its intersection with the north-western-most corner of Allotment 7 in Deposited Plan 31585; being a point on the southern portion of the external boundary of Native Title Determination of SAD 6027/1998 Ngarrindjeri and Others Native Title Claim (SCD2017/002) being along a portion of the north-western portion of the external boundary of Native Title Application SAD 211/2017 First Nations of the South East #1 native title claim (SC2017/002).

Then easterly along the northern boundaries of Allotment 7 in Deposited Plan 31585 and Section 56, Hundred of Neville; easterly along the northern boundary of Section 59, Hundred of Neville to its intersection with the centreline of the main channel of the body of water known as The Coorong; generally north-westerly along the said centreline of the main channel of the body of water known as The Coorong to its intersection with Latitude 36.099526 South; north-easterly in a straight line to the intersection of the centreline of the Princes Highway road reserve with Latitude 36.092496 South; generally south-easterly along the centreline of the Princes Highway road reserve to its intersection with the centreline of the Salt Creek Road road reserve; generally north-easterly along the centreline of Salt Creek Road road reserve to its intersection with the centreline of a private road in Section 22, Hundred of Messent; generally easterly and generally north-easterly along the centreline of said private road to its intersection with the southern boundary of the south-eastern portion of Section 1, Hundred of Messent; then north-easterly and northerly along the southern and eastern boundaries of the south-eastern portion of Section 1, Hundred of Messent; north-easterly along the south-eastern boundary of Section 10, Hundred of Messent; northerly along the eastern boundary of the north-western portion of Section 1, Hundred of Messent; northerly along the eastern boundary of the southern portion of Section 1, Hundred of Colebatch; northerly along the eastern boundary of Section 65, Hundred of Colebatch; northerly along the eastern boundary of the northern portion of Section 1, Hundred of Colebatch to the north-eastern corner of Section 1, Hundred of Colebatch; northerly along the prolongation northerly of the eastern boundary of the northern portion of Section 1, Hundred of Colebatch to its intersection with the centreline of Gumwell Road road reserve; easterly along the centreline of Gumwell Road road reserve to its intersection with the centreline of Lake Ellen Road road reserve; northerly along the centreline of Lake Ellen Road road reserve to its intersection with the centreline of Woods Well Road road reserve; generally north-easterly along the centreline of Woods Well Road road reserve to the point of commencement; being along a portion of the southern portion of the external boundary of Native Title Determination of SAD 6027/1998 Ngarrindjeri and Others Native Title Claim (SCD2017/002).

Cadastral and Mean Low Water Mark data sourced from Department of Trade and Investment (29 August 2023).

Geographical coordinates are referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees.

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographical data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

Part A: Map of the External Boundaries of the Determination Area

SCHEDULE 3 - LAND AND WATERS WHERE NATIVE TITLE EXISTS (NATIVE TITLE LAND)

Note: Please refer to Schedule 2 for further detail where a portion of a parcel is indicated.

SCHEDULE 4 - AREAS WHERE EXTINGUISHMENT OF NATIVE TITLE IS TO BE DISREGARDED DUE TO THE OPERATION OF SS 47A, 47B OR 47C OF THE NATIVE TITLE ACT 1993 (CTH)

Note: Please refer to Schedule 2 for further detail where a portion of a parcel is indicated.

Part A: Section 47A parcels (Benefit of Aboriginal People)

NT Land (exclusive) (s 47A NTA)

NT Land (exclusive) (s 47A NTA)

NT Land (exclusive) (s 47A NTA)

Part B: Section 47B parcels (Vacant Crown land)

(s 47B NTA)

(s 47B NTA)

(s 47B NTA)

(s 47B NTA)

(s 47B NTA)

(s 47B NTA)

Part C: Section 47C parcels (Parks)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

NT Land (s 47C NTA)

Including any areas covered by public works (including the area defined in s 251D of the NTA) constructed or established by the State, or by another person on behalf of the State, but only if they are campgrounds, signs, boat ramps, shelters, parking areas or toilet facilities, over which extinguishment is disregarded in accordance with the Section 47C Agreement and pursuant to s 47C(8) of the NTA.

SCHEDULE 5 - AREAS WHERE NATIVE TITLE IS WHOLLY EXTINGUISHED

1. Notwithstanding anything in this Determination, native title rights and interests have been wholly extinguished in:

(a) minerals as defined in s 6 of the Mining Act 1971 (SA);

(b) petroleum, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA);

(c) a naturally occurring underground accumulation of a regulated substance as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 m from the surface of the earth;

(d) a natural reservoir, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 m from the surface of the earth;

(e) geothermal energy, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), the source of which is below a depth of 100 m from the surface of the earth.

2. For the purposes of paragraph 1 of this Schedule, and for the avoidance of doubt:

(a) a geological structure (in whole or in part) on or at the earth's surface or a natural cavity which can be accessed or entered by a person through a natural opening in the earth's surface, is not a natural reservoir;

(b) thermal energy contained in a hot or natural spring is not geothermal energy as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA); and

(c) the absence from this paragraph of any reference to a natural reservoir or a naturally occurring accumulation of a regulated substance, as those terms are defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), above a depth 100 m below the surface of the earth or geothermal energy the source of which is above a depth of 100 m below the surface of the earth is not, of itself, to be taken as an indication of the existence or otherwise of native title rights or interests in such natural reservoir, naturally occurring accumulation of a regulated substance, or geothermal energy.

1. Except with respect to Part C of Schedule 4, in relation to which any extinguishment by public works is to be disregarded by operation of s 47C(8) of the NTA, native title rights have been wholly extinguished in the areas covered by public works (including the area defined in s 251D of the NTA) which were constructed or established prior to 23 December 1996 or commenced to be constructed or established on or before that date.
2. Native title rights have been wholly extinguished over all roads which have been validly established pursuant to:

(a) s 5(d)(II) of the Crown Lands Act 1929 (SA);

(b) s 70(3) or s 70(4) of the Crown Land Management Act 2009 (SA); or

(c) South Australian statute or common law,

as shown in white on the maps in Schedule 2.

5. Native title rights have been wholly extinguished in the following Parcels:

Note: Please refer to Schedule 2 for further detail where a portion of a parcel is indicated.

The Native Title Holders are those living Aboriginal people who from time to time satisfy all three of the following criteria:

(a) are descended (including by adoption in accordance with traditional law and customs) from one or more of the following identified ancestors;

(i) Harry Carter;

(ii) John Dunn;

(iii) Jim Gibson and Catherine (a.k.a. Catharine, Caroline or Katherine) Gibson;

(iv) Elizabeth (Lizzie) Maratinyeri;

(v) George Harris and Eliza Petembitepin;

(vi) Mary Lampard;

(vii) Maggie (the mother of Jack, Harry and Alf Watson);

(viii) Matilda a.k.a. Lena Weyantali, the mother of Milerum;

(ix) Pinkie;

(x) Peter Pulame / Pullen;

(xi) Kitty Russell;

(xii) Emily (Emma) Yriandinyeri (wife of Joe Walker and mother of Emily Walker);

(xiii) Whympie (a.k.a. Wirimpie) and Turtaminyeri; and

(b) identify themselves as having rights and interests in the Determination Area under the traditional laws and customs applicable to the Determination Area, as:

(i) a Tanganekald, Meintangk (Moandik) or Potaruwutj person; and/or

(ii) a member of the Ngarrindjeri Nation, or the First Nations of the South East or Bunganditj (Boandik) Nation; and

(c) are recognised by a substantial number of other Native Title Holders as having rights and interests in the Determination Area under the traditional laws and customs applicable to the Determination Area, as:

(i) a Tanganekald, Meintangk (Moandik) or Potaruwutj person; and/or

(ii) a member of the Ngarrindjeri Nation, or the First Nations of the South East or Bunganditj (Boandik) Nation.

(collectively, Native Title Holders).

For the avoidance of doubt, a person who satisfies criteria (b) and (c) also needs to satisfy the criteria in (a) in order to be a Native Title Holder.

The nature and extent of the 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 Crown in right of the Commonwealth of Australia;

(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 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 Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746), and their 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:

1. to inspect land;
2. to install, occupy and operate telecommunications facilities; and

1. 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;

(i) 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 9 (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 9 (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;

(j) the rights and interests of each of the Kingston District Council, Coorong District Council and the District Council of Tatiara 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).

(k) The interests of persons to whom valid or validated interests have been granted by a Council under the Local Government Act 1934 (SA) or the Local Government Act 1999 (SA).

SCHEDULE 8 - HARBORS AND NAVIGATION ACT LAND

Part A: Areas where native title exists - clause 5.1(c) of the Ngarrindjeri Part B & First Nations of the South East #2 ILUA

Note: Please refer to maps provided in Schedule 2 Part B for further detail where a portion of a parcel is indicated.

Harbors and Navigation Act Land

Part B: Areas where native title does not exist - clause 5.1(d) of the Ngarrindjeri Part B & First Nations of the South East #2 ILUA

Native title does not exist in any Adjacent land or Subjacent land within the Determination Area that is vested in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA) (Vesting) where native title has been extinguished by an act or acts other than the Vesting.

SCHEDULE 9 - EXISTING INFRASTRUCTURE AND EASEMENTS

Existing interests of SA Power Networks

ASSETS - CONDUCTORS

No: SAD6027/1998

Federal Court of Australia

District Registry: South Australia

Division: General

NGARRINDJERI NATIVE TITLE CLAIM (PART B)

AMPLITEL PTY LTD AS TRUSTEE OF THE TOWERS BUSINESS OPERATING TRUST (ABN 75 357 171 746)

No: SAD180/2017

Federal Court of Australia

District Registry: South Australia

Division: General

FIRST NATIONS OF THE SOUTH EAST #2 NATIVE TITLE CLAIM

WILDCATCH FISHERIES OF SOUTH AUSTRALIA INCORPORATED

AMPLITEL PTY LTD AS TRUSTEE OF THE TOWERS BUSINESS OPERATING TRUST (ABN 75 357 171 746)

1. Today the Court makes a determination of native title resolving two overlapping claims over an area of land and waters on the Coorong in South Australia (Determination Area). The claims were commenced by groups known as the Ngarrindjeri People and First Nations of the South East. To the extent that the claims overlapped, they have been heard and resolved together under s 67 of the Native Title Act 1993 (Cth).
2. The parties approach the Court for a determination of native title under s 87(2) of the Native Title Act. It confers a power on the Court to make a determination without holding a hearing. I am satisfied that there should be a determination substantially in the terms sought and now explain how the conditions for making the determination are fulfilled.
3. The Preamble to the Native Title Act sets out the considerations that were taken into account by the Parliament upon its enactment in 1993. It begins with a recognition that the descendants of Aboriginal peoples and Torres Strait Islanders inhabited Australia before European settlement, that they have been progressively dispossessed of their lands, and that successive governments have failed to reach a lasting and equitable agreement with them concerning the use of their lands.
4. In Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1, the High Court confirmed that the common law of Australia recognises a form of native title that reflects the entitlement of Australia's Indigenous inhabitants under and in accordance with their traditional laws and customs. A purpose of the Native Title Act was to establish special procedures for the just and proper ascertainment of native title rights and interests, and to ensure that could be done by way of conciliation or otherwise in a manner that has due regard to their unique character.
5. In places where more than one claim relates to the same area, the process of conciliation and other forms of dispute resolution can be especially difficult. The determination made today is the result of conciliatory processes continuing over many years.
6. The determination can only be made if the conditions prescribed in s 87(1) are satisfied.
7. First, the period specified in the notices issued under s 66 of the Native Title Act must have passed: Native Title Act, s 87(1). That condition was satisfied in respect of both claims on 8 July 2025.
8. Second, there must be a written agreement on the terms of the proposed order, signed by all necessary parties (here including the State of South Australia) and filed with the Court: Native Title Act, s 87(1)(a)(i), s 87(1)(aa). That condition was satisfied by the filing of the parties' agreement on 7 August 2025.
9. The Court must also be satisfied that it has the power to make an order in, or consistent with, the terms of the agreement, and that it is appropriate to make the orders sought: Native Title Act, s 87(1)(c), s 87(2).
10. To be within the power of the Court, the order in which the determination is made must set out details of the matters mentioned in s 225 of the Native Title Act. It provides:

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.

1. The expressions "native title" and "native title rights and interests" are defined in s 223(1) 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.

1. The order sought by the parties fulfills the requirement in s 225(a) in that it identifies the persons or group of persons holding the common or group rights comprising native title in the Determination Area (at [12]). The remaining requirements of s 225 as satisfied as follows:

(1) the nature and extent of the native title rights and interests in relation to the Determination Area are set out in [8] - [11] and [13] - [14], so satisfying s 225(b);

(2) the nature and extent of other rights and interests in the Determination Area are set out in [17], so satisfying s 225(c);

(3) the relationship between the other rights and interests of those of the native title holders are set out at [18] - [19], so satisfying s 225(d); and

(4) the order states (at [15]) that the native title rights and interests do not confer possession, occupation, use and enjoyment of the land and waters to exclusion of all others, so satisfying s 225(e).

1. As reflected in the orders, for the purposes of s 57(2) of the Native Title Act, the Nori Native Title Aboriginal Corporation (ICN 10324) has been identified as the prescribed body corporate to be appointed to perform the functions set out in s 57(3).
2. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J said, of s 87 of the Native Title 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. ... 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.

1. 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: Lovett (at [37]); see also, Ward v State of Western Australia [2006] FCA 1848, North J (at [6] - [9]). The State's task in entering the agreement 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 "it is good against the whole world".

1. The Court has before it the Joint Submission prepared by the applicants and the State filed on 7 August 2025. The submission sets out the steps taken by the State to satisfy itself that there is a credible basis for the orders to be made: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; (2001) 115 FCR 109. In making that assessment, the State considered witness statements and reports of anthropologists, linguistics experts and a historical genealogist. On the basis of that and other material, the State has formed the view that there exists a credible basis for the determination without demanding the level of proof that would be required in the context of a contested trial.
2. In light of all that I have said so far, I am satisfied that the criteria for the making of a determination by consent are satisfied and that it is appropriate to make the order.
3. When a native title application is determined by consent, it is unnecessary for the Court to adjudicate the factual and legal questions that may have arisen on the application should it have proceeded to a contested hearing, and the Court's reasons for judgment may be short in addressing the essential criteria under s 87. It is nonetheless appropriate to record in these reasons some additional matters of importance to the parties and the wider Australian community.
4. When making a determination of native title, the Court does not grant the native title holders new rights or interests over the land and waters concerned. Rather it recognises that they possess rights and interests in the land and waters in accordance with traditional laws and customs. To describe laws and customs as "traditional" is to recognise their existence at the time that the British Crown first asserted sovereignty over the Determination Area, and their continued acknowledgment and observance since that time.
5. The Determination Area is situated about 230km south-east of Adelaide. Soon after the assertion of sovereignty, it was subject to the impacts of rapid settlement having devastating impacts upon the original occupants of the land. The determination made today recognises that the native title holders are the descendants of those original occupants, being members of language groups known as Tanganekald, Meintangk (Moandik) and Potaruwutj. To the present day, their living descendants maintain their connection with the land and waters of the Determination Area. The determination recognises rights and interests that have always been possessed by them.
6. The claims culminating in today's determination were previously set down for a contested trial to be heard in 2021. Since that time the parties have gone to considerable efforts to resolve disputed issues, not only between the original claim groups but also between the State and other respondents.
7. The parties' Joint Submission refers to the Tanganekald, Meintangk (Moandik) and Potaruwutj language groups as forming a part of "the broader Ngarrindjeri society or the First Nations of the South East society" and refers to the Determination Area as a "transition zone" between those groups. The determination is made on the basis that, within the Determination Area, they share a system of laws and customs facilitated by marriage and other forms of social interaction. The native title rights and interests recognised today include the rights to engage in activities such as hunting, fishing and gathering activities, cultural activities (including births, funerals, burials and visiting) and the continuation of customs and practices on the land and waters. The native title holders also have an interest in maintaining and protecting the country, including granite rocks of cultural and mythological importance.
8. The resolution of other issues is to some extent recorded in separate agreements including an agreement for the purposes of s 47C of the Native Title Act relating to parts of the Coorong National Park, Gum Lagoon Conservation Park, and Martin Washpool Conservation Park. The various agreements are referred to in the Court's orders and reflect the number and complexity of the issues the parties have resolved. The agreement made for the purposes of s 47C of the Native Title Act is the first of its kind to restore native title in a number of park areas where native title was previously said to have been extinguished.
9. As Colvin J observed in The Nyamal Palyku Proceeding (No 7) [2023] FCA 528; (2023) 296 FCR 169, it is the manifest intention of the Native Title Act that those involved in claimant applications "will seek to reach agreement rather than simply insist upon some form of adjudication by the Court" (at [98]), mediation being the "preferred means for the resolution of controversies as to the existence of native title" (at [107]). That does not mean that mediation and other conciliatory processes are necessarily easy. No doubt, the processes culminating in today's orders have been difficult. The parties are to be commended for reaching an agreement that provides certainty to all persons having rights and interests in the land and waters, both in the present day and for future generations of Indigenous and non-Indigenous Australians.

1. Orders will now be entered substantially in the terms sought.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.