Weetra-Height on behalf of the Nauo People v State of South Australia

Federal Court of Australia|2023-05-15|Before: O'Bryan J

Introduction 1 By orders made today, a determination of native title under the Native Title Act 1993 (Cth) (NTA) has been made on behalf of the Nauo people in respect of an area of land and waters in the south west of the Eyre Peninsula in South Australia, from the coast just south of Elliston, stretching inland to Kyancutta, then southward to meet the coastline midway between Whalers Way and Almonta Beach, encompassing the western coast of the Peninsula. It takes in the islands and waters of Coffin Bay. 2 The determination is made in the following proceedings (relevant proceedings): (a) the application made on behalf of the Nauo people in proceeding SAD 65 of 2022 (Nauo); and (b) the application made on behalf of the Nauo people in proceeding SAD 185 of 2021 (Nauo #4). 3 The parties to the relevant proceedings reached agreement on the terms of a native title determination (proposed consent determination) for the areas of the land and sea the subject of the applications (determination area) and a form of orders regarded as appropriate to provide recognition of the native title rights and interests held by the native title claimants, the Nauo people, in the determination area. The agreement is recorded in a document filed with the Court which has been signed on behalf of each party to each relevant proceeding. 4 The parties applied to the Court for an order in, or consistent with, the terms of the proposed consent determination pursuant to s 87 of the NTA. These are my reasons for making the determination sought by the parties.

The claim areas 7 The claim areas are in the south west of the Eyre Peninsula. The external boundary runs north east from the coast just south of Elliston, 91 kilometres to Kyancutta then follows the Tod Highway south, south east for 51 kilometres through Lock, turning south another 135 kilometres till it meets the Tramline Track near Uley, then following the Eastern Boundary Track until it meets the coastline mid-way between Whalers Way (to the south) and Almonta Beach (to the north). The boundary then runs northwest along the coast up to the starting point south of Elliston, extending 10 metres off shore from the lowest astronomical tide from the base of the steep cliffs that line the coastline and 50 metres seaward of the lowest astronomical tide off shore from easily accessible beaches. Together, the two claims cover an area of over 7,420 square kilometres. The claim areas include Coffin Bay National Park, the Whidby Wilderness Area, Bascombe Wells Conservation Park and Barwell Conservation Area. 8 The land and waters of the claim areas support pastoral, agricultural, fishery and tourism industries. The claim areas have warm to hot dry summers and cool, wet winters. They feature a rugged and relatively undeveloped coastline of beaches and soaring cliffs with a number of islands, bays and inlets offering great bio-diversity and geographically dramatic headlands. The cliffs rise above a granite base capped with limestone which is continually sculpted by the waters of the Southern Ocean which meet the Great Australian Bight. It is rich in bird life with osprey, sea eagles, plovers, oyster catchers and other unique species such as the Port Lincoln parrot making their homes in the many unspoilt parts of the claim areas. The landscape is undulating and low, with most areas less than 150 metres above sea level. There are some isolated large hills with a number of granite peaks of great cultural and mythological significance to Nauo people, some reaching hundreds of metres above the surrounding mostly flat or gently undulating terrain. A large proportion of the land has been cleared for agricultural production; however, substantial areas of native vegetation remain. 9 There are no rivers in the claim areas and its interior can be very arid. However, the claim areas feature some inland water systems like Lake Greenly/Puwanna, Lake Malata and Lake Hamilton, a natural saline lake that is 12 kilometres in length. These lakes and related isolated hills are very important spiritually-imbued areas for Nauo people which they have responsibilities to protect.

European settlement of the claim areas 10 From 1788 to 1825, the British colony of New South Wales extended westwards to 135° east longitude (about 10 kilometres east of the township of Elliston). The land further to the west was known as New Holland and was unclaimed by any foreign power. In 1825, the western boundary of NSW was extended to 129°, placing it at what is now the border between South Australia and Western Australia. 11 Effective sovereignty for this part of the Eyre Peninsula began from about 1839-40, when the first Europeans explorers ventured into the area, or the early 1850s, when the first sheep stations were carved out and a police station was established north of Elliston at Venus Bay in 1853. Pastoralists and others followed, establishing pastoral stations across the claim areas from the 1860s onwards. Settlement of the area was a contested and often violent frontier for a long period of time, severely impacting the Nauo people. 12 Port Lincoln and small townships in the claim area such as Cummins, Lock, Warramboo, Kyancutta and along the coast settlements such as Coffin Bay and Sheringa are where Nauo people live within the claim areas. Most of the Nauo claimants live and work in the small towns scattered throughout the Eyre Peninsula with Port Lincoln as the primary hub. As shown by the statements made by members of the claim group (listed below), the claimants, their families and forebears have occupied and found work within the claim areas since colonists arrived, overcoming the removal of many Nauo people to Point Pearce in the early 1900s through their determined return to their traditional country. 13 In 1997, following the commencement of the NTA on 1 January 1994, Nauo people commenced their efforts to secure recognition of their native title rights and interests, held under their traditional laws and customs, in the claim areas. Since prior to being filed and continuously since then, the Nauo claims have been developed with the support of the native title representative body for the region, the Aboriginal Legal Rights Movement (ALRM) and subsequently by South Australian Native Title Services (SANTS).

Parties to the applications 14 By the end of the notification periods for each of the relevant proceedings, persons who provided Forms 5 within the notification period were joined as parties to the proceedings, including the Commonwealth, local government bodies, and parties with fishing, pastoral or commercial interests within the claim areas. In the course of the relevant proceedings, some parties have withdrawn, some have been added and the joinder of others has been refused (see Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829). The current parties to the relevant proceedings are listed in Schedule 8 to the proposed determination. All parties consent to and have signed the proposed consent determination.

Progress of the claims 15 When originally lodged in November 1997, the Nauo claim covered a larger area than shown by the present boundaries of the claim. It overlapped with the Wirangu No 2 claim (SAD6019/1998 - later SAD64/2022 - lodged on 28 August 1997), and the Barngarla claim (SAD 6011/1998, lodged on 4 April 1996). 16 Assisted by the ALRM, agreements between the claimant parties were reached resolving their overlapping claims. To give effect to that agreement, leave to amend the external boundaries of Wirangu No 2 was granted by O'Loughlin J on 12 March 1999 and on 25 January 2000. The external boundaries of the Nauo claim were amended in 1999 in accordance with the agreements reached with the claimant parties of the Wirangu No 2 claim and the Barngarla claim, substantially reducing the Nauo claim area and withdrawing from any overlap with the Wirangu No 2 claim. The filing of the Nauo #3 claim (SAD 63/2018, lodged on 16 March 2018), following the determination in the Bangarla claim (see Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724), restored a Nauo claim to part of the Nauo people's traditional country from which the earlier Nauo claim had been withdrawn. This created an overlap with the Wirangu No 2 Part B claims. 17 On 18 December 2019, White J made orders programming for hearing certain questions in relation to the existence of native title in Parts B of the Wirangu No 2 claims and the Wirangu No 3 claims (SAD 228/2019, lodged 28 October 2019), Nauo #3 and the Nauo claim. That trial was due to commence on 2 August 2021. During 2021, the Nauo Applicants engaged in direct negotiation and mediation, conducted by the Registrar, with the State and the Commonwealth (the principal parties). This led to agreement regarding the appropriate steps which, if taken, would enable the claims to be resolved by consent. 18 The Court was kept informed about the progress being made by the principal parties. From 13-16 April 2021, Registrars Colban and Parkyn convened a conference of experts between the experts for the Wirangu people, the experts for the Nauo people and the experts for the State. The outcome of that conference was considered by the principal parties and negotiation regarding the possibility of resolving all proceedings by consent were undertaken. Consequently, the Court made orders on 19 July 2021 suspending the trial of Nauo #1 and Nauo #3, which proceedings had been listed for hearing with Parts B of Wirangu No 2, Wirangu No 3 and the Wirangu Sea Claim No 2 (SAD 84/2021, lodged 18 May 2021). The hearing was suspended to allow the applicants and the principal parties to continue their efforts to resolve by consent the Nauo #1 and #3 claims, as well as the related Wirangu No 2, Wirangu No 3 and Wirangu Sea Claim No 2 Part B claims. 19 The Nauo Applicants took the steps proposed with the agreement of the principal parties, including amending the Nauo claims in certain respects to be consistent with the matters agreed in principle. On 28 September 2021, the Court noted the efforts being made by the parties to the Nauo and Wirangu proceedings towards resolution of all the proceedings by consent, vacated the trial programming orders, and referred the proceedings to case management by the Registrar. 20 On 8 December 2022, the Court made a consent determination of native title in respect of the Wirangu No 2, Wirangu No 3 and Wirangu Sea Claim No 2 Part A claims: see Wilson on behalf of the Wirangu People v South Australia (No 2) [2022] FCA 1460. 21 On 10 February 2023, the Court made a consent determination of native title in respect of the overlapping Nauo #3 and the Wirangu No 2, Wirangu No 3 and Wirangu Sea Claim No 2 Part B claims: see Wilson on behalf of the Wirangu People and Weetra on behalf of the Nauo People v South Australia [2023] FCA 60.

Evidence filed in the proceedings 22 In the course of the Nauo claims, the Applicants filed evidence from members of the claim group and expert anthropological evidence. The evidence filed comprised: (a) outlines of evidence and/or s 47B affidavits from the following claimants: Brenton Weetra, Jody Miller, Joanne Miller, David Buzza, Mark Larking, Danielle Ahang, Pauline Branson, Michael Miller, Jason Ramp, Cynthia Weetra Buzza and John Byron Snr; and (b) expert anthropological reports of Dr Scott Cane and Dr Belinda Leibelt. 23 The State filed a responsive expert anthropological report of Dr Kingsley Palmer, as well as a historical report by Mr Tom Gara. 24 As noted above, in April 2021, a conference of experts in the Nauo and Nauo #3 claims and the Wirangu Part B claims took place, following which a joint report was produced recording substantial agreement between the experts on key propositions discussed. 25 On the basis of the totality of the evidence, including the outcomes of the conference of experts, the State and active respondents gave careful consideration to the material provided by the Applicants and also had regard to the expert opinions. The State and active respondents formed the view that they could agree to the recognition of native title rights and interests in the relevant parts of the claim areas. This led to negotiation of an Indigenous land use agreement, which is discussed below, and the proposed consent determination.

Prescribed body corporate 26 By affidavit affirmed on 4 May 2023, Ms Bianca Lena (Acting Principal Legal Officer for South Australian Native Title Services and the acting legal representative for the Applicants) deposed that, at a meeting held on 14 October 2022 in Port Lincoln at which Ms Lena was present, members of the Nauo native title claim group resolved unanimously to nominate the Nauo Aboriginal Corporation to serve as the prescribed body corporate to hold their native title in respect of the determination area on trust and to become the Registered Native Title Body Corporate following determination of their native title claim. Ms Lena also deposed that all members and directors, on behalf of the Nauo Aboriginal Corporation, have accepted the nomination that it act as the prescribed body corporate. 27 By affidavit affirmed on 8 May 2023, Ms Bianca Lena deposed to the following further matters: (a) The Nauo Aboriginal Corporation has been registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). A copy of the certificate of registration for the company is annexed to Ms Lena's affidavit. (b) The Nauo Aboriginal Corporation was established for the purpose of being the subject of a determination pursuant to ss 56 or 57 of the NTA in respect of the Nauo and Nauo #4 applications. A copy of the Rulebook for the company is annexed to Ms Lena's affidavit. Rule 3 of the Rulebook expressly provides that the purpose of the corporation is to be the prescribed body corporate identified in the proposed consent determination, and that it is to have the functions of a registered native title body corporate under the NTA and the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth). (c) The inaugural members of the Nauo Aboriginal Corporation, comprising Brenton Weetra, Talitha Weetra, Jody Miller, Joanne Miller, Michael Miller, Danielle James (Ahang), Teresa Branson, David Buzza, Cathy McCormack, Cynthia Weetra Buzza and Jason Ramp, are native title holders in accordance with the proposed consent determination. As a consequence, the Nauo Aboriginal Corporation meets the indigeneity requirements set out in s 29-5 of the CATSI Act.

Indigenous Land Use Agreement 28 By affidavit affirmed on 2 May 2023, Ms Ella Moloney (a solicitor employed by the Crown Solicitor's Office for the State) deposed that the Applicants and the State of South Australia have agreed the terms of an indigenous land use agreement (referred to earlier as the Nauo Settlement ILUA) in connection with the settlement of the relevant proceedings by the proposed consent determination. The Nauo Settlement ILUA will be executed by the Applicants, the State and the Nauo Aboriginal Corporation. 29 The Applicants and the State agree that the proposed consent determination of native title will take effect upon the registration of the Nauo Settlement ILUA under Div 3 of Pt 2 of the NTA. 30 Among other matters, the Settlement ILUA provides that, upon its registration, the vesting of adjacent land and subjacent land in the Minister pursuant to s 15(1)(a) of the Harbors and Navigation Act 1993 (SA) is a valid act to which the non-extinguishment principle applies. It also provides for the validation of potentially invalid previous exclusive possession acts and compensation of the Applicants for prior extinguishment of native title over certain parcels in the claim areas.

Statutory requirements 31 The parties seek orders by consent from the Court pursuant to s 87 of the NTA. 32 Under s 87, the Court is empowered to make an order in, or consistent with, the terms agreed between the parties without holding a hearing (s 87(2)) if: (a) the period specified in the notice given in the proceeding under s 66 has ended (s 87(1)); (b) agreement has been reached on the terms of an order of the Court between the parties to the proceeding (and, if the Commonwealth Minister is intervening at the time the agreement is made, the Commonwealth Minister) (s 87(1)(a) and (aa)), and the terms of the agreement, in writing signed by or on behalf of the parties (and, if the Commonwealth Minister is intervening at the time the agreement is made, the Commonwealth Minister) have been filed with the Court (s 87(1)(b)); (c) the Court is satisfied that an order in, or consistent with, the terms agreed between the parties would be within the power of the Court (s 87(1)(c)); and (d) the Court is satisfied that it is appropriate to make the order (s 87(1A)). See generally Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 (Munn) per Emmett J at [4]-[5].

Condition (a) - period specified in s 66 33 The periods specified in s 66 of the NTA for each of the applications has been set out earlier in these reasons. Each of those periods has ended. Accordingly, condition (a) is satisfied.

Condition (b) - agreement has been reached and the terms filed with the Court 34 A minute of consent determination in respect of each of the relevant proceedings, signed on behalf of all of the parties to the relevant proceedings (including the Commonwealth, which is a party to the Nauo and Nauo #4 applications) has been filed with the Court. The minute records that: (a) the parties have reached agreement on the terms of orders of the Court in relation to the relevant proceedings; and (b) the terms of the agreement are that each party consents to the making of orders pursuant to s 87 of the NTA and a determination of native title in the terms that were distributed by the State on 27 September 2022, including the maps and the tenure schedules distributed on 16 September 2022. 35 A copy of the proposed determination, referred to in the minute, has also been filed with the Court and is the basis for this determination by the Court. Accordingly, condition (b) is satisfied.

Condition (c) - proposed order would be within the power of the Court 36 In order to be satisfied that the proposed orders are within the power of the Court, consideration must be given to other restrictions or requirements in the NTA applicable to any determination of native title: Freddie v Northern Territory [2017] FCA 867 (Freddie) at [15]. In that regard, I have considered the following requirements: (a) the requirement in s 68 that the area covered by the determination cannot be the subject of a previously approved determination of native title; (b) the requirement in s 94A that the determination set out the details of the matters required by s 225; (c) the requirement in s 223(1)(c) that the determination concerns rights and interests which the Australian common law is able to recognise; and (d) the requirement in s 55 for the Court to make such determinations as are required by ss 56 and 57 at the same time as, or as soon as practicable after, the Court makes the determination, including: (i) specifying whether the native title is to be held in trust and, if so, by whom; and (ii) if the native title is to be held in trust by a body corporate, that a representative of the native title holders has given the Court a written nomination of a prescribed body corporate together with the written consent of the body corporate to be the trustee; and (iii) if the native title is not to be held in trust, that a representative of the native title holders has given the Court a written nomination of a prescribed body corporate together with the written consent of the body corporate to be a non-trustee prescribed body corporate.

Section 68 (overlap with previous determination) 37 Based on the records of the National Native Title Register kept under Pt 8 of the Act, I am satisfied that there is no determination of native title in existence over the area the subject of this proposed consent determination.

Section 94A (details required by s 225) and s 223(1)(c) 38 Section 225 defines a "determination of native title" as follows: 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 and 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. 39 I have examined the proposed consent determination. I am satisfied that each of the matters referred to in s 225 is appropriately articulated in those orders and the rights and interests so described are recognisable by the common law of Australia (as per s 223(1)(c)). I note the following matters in particular: (a) The determination area is defined at paragraph 6 of the proposed determination by reference to schedule 1, with paragraph 7 defining the areas of land and water within the determination area in which native title exists by reference to schedules 3, 4 and 5. (b) A description of the native title holders is set out in paragraph 11 of the proposed determination. (c) A description of the nature and extent of the native title rights and interests in relation to the determination area is set out in paragraphs 12 to 16 of the proposed determination. Paragraph 13 stipulates that the native title rights and interests do not confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. (d) A description of the nature and extent of other interests in relation to the determination area is set out in paragraph 16 of the proposed determination. (e) The relationship between the native title rights and interests and the other interests is set out in paragraph 17 of the proposed determination.

Section 55 (whether native title held in trust and prescribed body corporate) 40 Section 55 of the NTA stipulates that, if the Court proposes to make an affirmative determination of native title it must, at the same time as, or as soon as practicable after, it makes the determination, make such determinations as are required by s 56 (which deals with the determination of a prescribed body corporate to hold the native title in trust for the common law holders) or s 57 (which deals with the determination of a prescribed body corporate to perform the non-trust functions specified in s 57(3)). 41 The parties seek a determination that the native title the subject of this determination is to be held on trust by the Nauo Aboriginal Corporation. 42 Before making a determination that effect, s 56(2) requires that the Court receive a written nomination from a representative of the native title holders of the Nauo Aboriginal Corporation to be a trustee of the native title, together with the written consent of that body corporate. The Court must also be satisfied that the Nauo Aboriginal Corporation is a prescribed body corporate within the meaning of the NTA. Section 59 provides that regulations may prescribe the kinds of body corporate that may be determined under s 56(2)(b). Regulation 4 of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) sets out the requirements for a body corporate to be a prescribed body corporate for that purpose. 43 The determinations that are required to be made by the Court under ss 56 and 57 of the Act are important elements of a native title determination: see Farrer on behalf of the Ngarrawanji Native Title Claim Group v State of Western Australia (No 4) [2021] FCA 1497 and Mulardy, on behalf of the Birriman-gan Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 276. As set out earlier, evidence has been adduced by the applicants concerning: the nomination by the Nauo native title holders of the Nauo Aboriginal Corporation to hold their native title in trust; the objects of the company (which objects include to be a prescribed body corporate for the purpose of a determination under ss 56 or 57 of the NTA); the company's membership (which comprises native title holders pursuant to the proposed consent determination); the company's consent to act as a prescribed body corporate, and its registration under, and satisfaction of certain requirements of, the CATSI Act. 44 I am therefore satisfied that the Court is empowered to make the determinations sought by the parties under s 56.

Condition (d) - it is appropriate to make the proposed order 45 As noted above, in exercising its power under s 87 of the NTA, the Court must be satisfied that it is appropriate to make an order in, or consistent with, the terms agreed between the parties. Factors that may be relevant to the exercise of the Court's discretion to make a determination of native title under ss 87 and 87A have been considered in many cases, including Munn at [28]-[33]; Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479 at [20]-[23]; and James on behalf of the Martu People v State of Western Australia [2002] FCA 1208 at [4]. In Freddie and Agius v State of South Australia (No 6) [2018] FCA 358 (Agius), Mortimer J (as her Honour then was) examined in detail the issue of appropriateness in the context of s 87(1A). At [63] of Agius, her Honour observed: The Court's function where there is agreement as to a determination of native title, and its discretion, must also be understood in the context of the Native Title Act's emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that: A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. (Emphasis added) 46 Her Honour summarised the role of the Court as follows: (a) The s 87(1A) role is quite different from the Court's role in contested hearings. The Court's focus is on the agreement between the parties: Lander v State of South Australia [2012] FCA 427 at [11]; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (Agius at [62]). (b) Satisfaction as to appropriateness must take into account the nature of the rights sought to be recognised in the determination, having operation against the whole world, including rights in rem. The orders should be clear in their terms and the process one which observes procedural fairness and is supported by the State's agreement that a "credible and rational basis" for the determination has been made out (Agius at [64]). (c) The discretion as to appropriateness is wide but the Court must focus on the individual circumstances of each determination: Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 at [18] (Agius at [65]). (d) The Court must also consider ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and pursue the objectives of those provisions promoting the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible (e.g. Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 per Jagot J) (Agius at [66]). (e) There must be some probative material to allow the Court to satisfy itself that the requirements of s 225 of the Act are met. However, there is no requirement to file all of the material as the determination is based on the agreement entered into on a free and informed basis: Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 at [9] (Agius at [68] to [69]). (f) The Court is not required to conduct an enquiry on the merits, but must still be satisfied that the State made a reasonable and rational decision in entering the s 87 agreement: Brown v Northern Territory of Australia [2015] FCA 1268 at [23]; King (on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group) v State of South Australia [2011] FCA 1387 at [21] (Agius at [70] to [71]). (g) The Court should be satisfied that the State came to the agreement after discharging its public responsibilities to the community it represents, including the claimants: Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 at [16] (Agius at [72]). (h) The public interest in a settled outcome as opposed to an exhaustive contested process is considerable: Prior on behalf of the Juru (Cape Upstart People) v State of Queensland (No 2) [2011] FCA 819 at [26] (Agius at [74]). (i) The flexibility of a settled outcome allows the State to take into account a wide range of matters including, for instance, the history of dispossession (Agius at [75]). 47 In the present case, I am satisfied that it is appropriate to make the consent determination for the following reasons. 48 First, the agreement reached between the parties is a culmination of a lengthy period of investigation and negotiation. 49 Second, all parties have been legally represented and there is no reason to doubt that the parties have made an informed decision to resolve the application by agreement. 50 Third, the State, in its role of protecting the interests of the community generally, has been an active participant in the investigation and negotiation of the proposed consent determination. 51 Fourth, the parties have filed lay and expert evidence which together demonstrates that the proposed consent determination has a rational and reasonable basis. 52 It is relevant to note one aspect of the proposed consent determination. Paragraph 9 of the proposed consent determination provides as follows: The Court notes that the State and the Applicants have agreed to enter into the Nauo Settlement ILUA. In accordance with the agreement recorded in that ILUA, native title exists, subject to the terms of these Orders, in Adjacent land and Subjacent land within the Determination Area that is vested in the Minister under section 15(1)(a) of the Harbors and Navigation Act 1993 (SA), including the areas identified in Schedule 5 but excluding those areas identified in Schedule 6. 53 As noted earlier, under the Nauo Settlement ILUA, the parties have agreed, including for the purposes of s 24EBA of the NTA, that the vesting of adjacent land and subjacent land in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA) is a valid act to which the non-extinguishment principle applies. Paragraph 9 of the proposed consent determination recognises the statutory effect of the parties' agreement under the NTA (noting that the determination will not come into effect until the Nauo Settlement ILUA has been registered on the Register of Indigenous Land Use Agreements).

Conclusion 54 In conclusion, I am satisfied that the proposed consent determination should be made. The native title rights and interests of the Nauo people in the areas of land and sea that are the subject of the relevant proceedings should be formally recognised in the proposed consent determination under the NTA. 55 It is important to observe that this determination of native title does not create native title in the determination area. Instead, it constitutes the recognition by the Australian legal system of the Nauo people's long held native title in this land which has existed, according to the traditional laws and customs of the Nauo people, since long before this determination today and before the assertion of British sovereignty. 56 The parties and their representatives are to be congratulated on bringing this matter to a conclusion by way of agreement. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.

Native Title (Prescribed Body Corporate) Regulations 1999(Cth)

Petroleum and Geothermal Energy Act 2000(SA)

Landscapes South Australia Act 2019(SA)

Aboriginal Lands Trust Act 1966(SA)

(SA), Crown Land Management Act 2009(SA)

(SA), Crown Lands Act 1929(SA)

(SA), Native Vegetation Act 1991(SA)

(SA), Fisheries Management Act 2007(SA)

(SA), Natural Resources Management Act 2004(SA)

(SA), Mining Act 1971(SA)

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

(Cth), the Telecommunications Act 1975(Cth)

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

(Cth), the Telecommunications Act 1991(Cth)

Local Government Act 1934(SA)

Crown Lands Act 1929(SA)

Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829 Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993

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