Sumner v State of South Australia - [2017] FCA 1514 - FCA 2017 case summary — Zoe

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Sumner v State of South Australia

[2017] FCA 1514

Federal Court of Australia|2017-12-14|Before: White J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2017-12-14

Before

White J

Catchwords

NATIVE TITLE - consent determination - whether requirements to make orders under ss 87A and 94A of the Native Title Act 1993 (Cth) are satisfied - orders made.

Source

Original judgment source is linked above.

Catchwords

NATIVE TITLE - consent determination - whether requirements to make orders under ss 87A and 94A of the Native Title Act 1993 (Cth) are satisfied - orders made.

Judgment (36 paragraphs)

[1]

A. The Applicant first lodged Native Title Determination Application No. SAD 6027/1998 (the Application) with the National Native Title Tribunal on 6 July 1998 in relation to lands and waters in southern South Australia. The Applicant amended the Application on 30 September 2016 to reduce the area covered by the Application to exclude land and waters seaward of the Low Water Mark (the amended Application). B. On 7 July 2017 a native title claim was lodged by the First Nations of the South East (First Nations of the South East #2 (SAD 180/2017)) which over-laps the southern portion of the Ngarrindjeri and others native title claim. As a consequence the Court ordered, on 27 July 2017, that the Ngarrindjeri People's native title application be separated into two parts to be called 'Ngarrindjeri Part A' and 'Ngarrindjeri Part B'. C. The Applicant, the State of South Australia and the other respondents have reached agreement as to the terms of a determination of native title to be made in relation to the land and waters covered by 'Ngarrindjeri Part A'. They have filed with this Court pursuant to section 87A of the Native Title Act 1993 (Cth) (the Native Title Act) an agreement in writing to seek the making of consent orders for a determination. D. The parties acknowledge that the effect of the making of the determination will be that the members of the native title claim group, 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 as defined by paragraph 4 of this Order. E. The parties have requested that the Court determine Part A of the proceedings without a trial. F. Being satisfied that a determination in the terms sought by the parties is within the power of the Court and that it is appropriate to do so on the consent of the parties:

[12]

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) in relation to those Reserves in Schedule 3: (i) the rights and interests of the Crown of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA) and the Wilderness Protection Act 1992 (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) and the Wilderness Protection Act 1992 (SA); (c) the rights and interests of the Crown in right of the State of South Australia pursuant to the Harbors and Navigation Act 1993 (SA); (d) the interests of the Aboriginal Lands Trust in the lands set out in Schedule 4 pursuant to the Aboriginal Lands Trust Act 1966 (SA); (e) the 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), Mining Act 1971 (SA), Petroleum and Geothermal Energy Act 2000 (SA), Opal Mining Act 1995 (SA), Fisheries Management Act 2007 (SA) and Natural Resources Management Act 2004 (SA) all as amended from time to time; (f) rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth; (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): (i) as the owner or operator of telecommunications facilities within the Determination Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), and the Telecommunications Act 1991 (Cth), and the Telecommunications Act 1997 (Cth), including rights; (a) to inspect land; (b) to install and operate telecommunication 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 on and in the vicinity of the Determination Area in performance of their duties; and (iv) under any lease, licence, access agreement or easement relating to its telecommunications facilities on the Determination Area; (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)) ("Electricity Act") and telecommunications facilities and infrastructure within the Determination Area including but not limited to the electricity infrastructure identified in Schedule 10 ("Existing Interests of SA Power Networks"); (ii) to exercise its entitlements and discharge its obligations as the holder of a licence under the Electricity Act and/or as an electricity entity under the Electricity Act; (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 Determination Area ("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 Determination Area ("Easements"); (vi) to provide its employees, agents or contractors with access to Existing Infrastructure, New Infrastructure and the Easements on the Determination Area ; 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; and (j) the rights and interests of each of the Alexandrina Council, the City of Victor Harbor, the Coorong District Council, the District Council of Yankalilla, the Rural City of Murray Bridge and any replacement or successor councils; (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 Determination Area; and (iii) in relation to dedicated land placed under its care, control and management pursuant to the Crown Land Act 1929 (SA) or the Crown Land Management Act 2009 (SA);
The relationship between the native title rights and interests that are described in Order 10 and the other rights and interests described in Order 14 (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; and otherwise; (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 Native Title Act, do not extinguish them; (c) in relation to the land and waters set out in Schedules 4 and 5, the non-extinguishment principle applies in relation to the grant or vesting of the land, or the creation of any other prior interest in the land.

[25]

WHITE J: 1 On 6 July 1998, the Applicants applied for a determination of native title under the Native Title Act 1993 (Cth) (the NT Act) in respect of a large area of land to the south of Adelaide and in the upper South East of South Australia (the Ngarrindjeri Claim). The application was lodged with the National Native Title Tribunal and was referred to this Court on 30 September 1998. 2 The Applicants have since amended their application so as to reduce the claim area and in particular, to remove the seaward portion of the claim. 3 On 7 July 2017, the people describing themselves as the First Nations of the South East filed an application for a determination of native title. That claim overlaps the southern portion of the present Ngarrindjeri Claim. 4 On 27 July 2017, the Court ordered that the Ngarrindjeri Claim be separated into two parts to be called Ngarrindjeri Part A and Ngarrindjeri Part B respectively. Ngarrindjeri Part B comprises the area which is overlapped by the claim of the First Nations of the South East. Ngarrindjeri Part A comprises the remaining area of the Ngarrindjeri Claim. 5 The parties have now reached agreement with respect to the Ngarrindjeri Part A claim and have applied, pursuant to s 87 of the NT Act, for a determination of native title by consent. 6 For the reasons which follow, I am satisfied that it is appropriate to make the determination. 7 I emphasise at the outset that the Court's orders will not have the effect of granting native title. Instead, they will be a declaration that native title exists, and has always existed, at least since European settlement. 8 The determination area covers approximately 7,173 square km of southern South Australia. Described broadly, the area extends from Cape Jervis at its most western point in a north easterly direction to Monarto. The boundary then extends to the south east, largely following the Dukes Highway almost to Tintinara where it turns south towards the coast near Salt Creek. The determination area encompasses the towns of Murray Bridge, Goolwa and Victor Harbor together with the Murray Mouth, Lower Lakes and portions of the River Murray and Coorong. In addition to the river and lakes, the determination area will include tributaries, lagoons, wetlands, salt-pans, coastal cliffs, coastal dunes and dry Mallee country.

[26]

The statutory requirements 9 Section 87A of the NT Act provides (relevantly): Application (1) This section applies if: (a) there is a proceeding in relation to an application for a determination of native title; and (b) at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) included in the area covered by the application; and (c) all of the following persons are parties to the agreement: (i) the applicant; (ii) each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made; (iv) each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made; (v) each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made; (vi) each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made; (vii) the Commonwealth Minister, if the Commonwealth Minister is a party to the proceeding at the time the agreement is made or has intervened in the proceeding at any time before the agreement is made; (viii) if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made; (ix) any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and (d) the terms of the proposed determination are in writing and signed by or on behalf of each of those parties. Proposed determination may be filed with the Court (2) A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court. Certain parties to the proceeding to be given notice (3) The Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court. Orders may be made (4) The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that: (a) an order in, or consistent with, the terms of the proposed determination would be within its power; and (b) it would be appropriate to do so. Note: As the Court's order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders). … 10 As can be seen, s 87A(1)-(3) applies when all the parties to a proceeding for the determination of native title have reached agreement in respect of part of the claimed area and when specified procedural requirements have been satisfied. When those circumstances exist, the Court may make a determination by consent without conducting a hearing. Nevertheless, the Court must still be satisfied that the terms of the proposed determination are within its power and that the making of the determination is appropriate. 11 The requirements of s 87A(1)-(3) have been satisfied in the present case. 12 Section 94A of the NT Act requires that an order of this Court by which a determination of native title is made must set out details of the matters mentioned in s 225. Section 225 provides: 225 Determination of native title A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. 13 The expression "native title rights and interest" appearing in s 225(b) is defined in s 223(1) as follows: Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. Hunting, gathering and fishing covered (2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

[27]

The Court's approach 14 Section 87A(4)(b) requires the Court to be satisfied that it is appropriate to make the proposed determination. That requirement reflects the fact that a determination made by consent will bind the community generally, and not just the parties to the present proceeding: Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [22]. 15 In former times, the Court's assessment of the appropriateness of the making of the orders required it to consider evidence bearing on that question. It is now accepted that the Court may proceed more flexibly. Section 87A(4) contemplates expressly that the Court may make a consent determination without conducting a hearing or hearing evidence. In relation to the counterpart provision in s 87, Keane CJ in King on behalf of Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386; (2011) 285 ALR 454 at [19] noted the approach which is permissible: More recently, the Court has been prepared to rely upon the processes of the relevant State or Territory about the requirements of s 223 being met to be satisfied that the making of the agreed orders is appropriate. That is because each State and Territory has developed a protocol or procedure by which it determines whether native title (as defined in s 223) has been established. It acts in the public interest and as the public guardian in doing so. It has access to anthropological, and where appropriate, archaeological, historical and linguistic expertise. It has a legal team to manage and supervise the testing as to the existence of native title in the claimant group. Although the Court must, of course, preserve to itself the question whether it is satisfied that the proposed orders are appropriate in the circumstances of each particular application, generally the Court reaches the required satisfaction by reliance upon those processes. They are commonly explained in the joint submissions of the parties in support of the orders agreed. 16 Thus, the Court recognises the important role of the relevant State in accessing claims of native title and may attach considerable weight to the State's evaluation. 17 Keane CJ also observed in King v State of South Australia at [21] that, when s 87 is invoked, the Court does not routinely embark on its own inquiry into the merits of the claim in order to be satisfied that the orders sought are supportable and in accordance with law. Nevertheless, the Court may have regard to evidence for the more limited purpose of satisfying itself that the consenting State is acting in good faith and rationally, at [21]. 18 The approach stated by Keane CJ has been recognised in other authorities. See, for example, Smith on behalf of Nharnuwangga, Wajarri and Ngarla People v Western Australia [2000] FCA 1249; (2000) 104 FCR 494 at [38] and Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [35]-[38].

[28]

Consideration 19 In this case, the parties have not presented evidence by tendering statements or anthropological reports. Instead, the Applicants and the State have made joint written submissions. Those submissions identify the material to which the State has had regard before giving its consent to the determination. In assessing the parties' submissions, I consider it appropriate to take into account: (a) the very long period during which these proceedings have been on foot. That period has allowed plenty of opportunity for the claims of the Applicants to be assessed; (b) the State of South Australia has developed a rigorous process for accessing evidence in native title claims. That process is outlined in a policy document entitled "Consent Determinations in South Australia: A guide to preparing native title reports"; (c) the State has conducted a lengthy and rigorous assessment of the evidence provided in support of the claim, including by making an assessment of the anthropological and historical evidence submitted by the Claimants and by making its own independent enquiries; (d) the material provided by the Applicant to the State includes an anthropological report provided by Professor Diane Bell. That report annexes genealogical material which has been collated and reviewed by Professor Bell; (e) the State also commissioned an independent anthropological assessment of Professor Bell's report. This was undertaken by Dr David Martin who is a consultant anthropologist with considerable professional and academic experience with respect to native title; (f) in addition, the State retained independent counsel to review the material and to advise on the sufficiency of the material provided by the Applicants.; (g) following this process, the State distributed to all respondent parties a position paper explaining the basis for its conclusions about the existence of native title. It is significant that all parties have either signed the agreement to indicate their consent to the determination of native title, or have removed themselves as a party to the proceeding; amd (h) the State has carried out a thorough tenure assessment which has allowed the parties to agree on the effect of the native title on the various tenures in the determination area. Accordingly, the consent orders will identify all the areas over which native title is recognised, including as a consequence of the application of ss 47 and 47B of the NT Act, an identification of those areas in respect of which native title has been extinguished.

[30]

The relevant society 21 A determination of native title requires that there be a recognisable group or society that presently recognises and observes traditional laws and customs in the determination area. For such a group or society to exist, there must be evidence that: (a) the people in question are united in and observe a body of accepted laws and customs; (b) the present day body of accepted laws and customs is in substance the same body of laws and customs acknowledged and observed by the ancestors or members of the society (allowing for some adaptation to modern circumstances); (c) the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty; (d) the society has continued to exist throughout the period since sovereignty as a body united in and by its acknowledgement and observance of the laws and customs: see Risk at [8]. 22 In the present case, Professor Bell's report describes the Ngarrindjeri society as comprising a community or nation of people who have historically occupied the land which includes the determination area. The community was comprised of a number of inter-dependent groups occupying different parts of the determination area which, broadly speaking, were demarcated by geological features. Professor Bell has identified a number distinctive features of Ngarrindjeri society including: (a) the system of totems called ngatji were central to Ngarrindjeri society and social organisation at the time of sovereignty. These totems were comprised of either animals or plants. They affiliated a person to a particular region. A Ngarrindjeri person is not permitted to marry another with the same ngatji. The general principle is that each Ngarrindjeri person acquires their father's ngatji although there are some exceptions to this; (b) the establishment of semi-permanent seasonal camps with reliable year round access to fresh water; (c) an overarching creation story of Ngurunderi; (d) an overarching governance structure in the form of a council known as the Tendi with a distinctive character; (e) an absence of moieties or subsections to regulate ceremonial life or marriage; (f) proscription of marriage with those that were too close in terms of genealogy and ngatji affiliation, rather than prescription of specific categories of kin eligible for marriage; (g) ngatji as a Ngarrindjeri-wide institution; (h) mutually intelligible dialects of Ngarrindjeri language. 23 Professor Bell also identified evidence indicating that the only basis for inclusion in Ngarrindjeri society, and accordingly by which native title rights and interests in the determination area will be obtained, is by descent. 24 The fact that there are a number of sub-groups within the Ngarrindjeri people does not detract from the finding that they constitute a single community or group.

Sumner v State of South Australia

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