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[2023] FCA 60
Federal Court of Australia
2023-02-10
O'Bryan J
Original judgment source is linked above.
Division: General Division
Registry: South Australia
National Practice Area: Native Title
Number of paragraphs: 68
Date of hearing: 10 February 2023
SAD 64 of 2022 Counsel for the Applicants: Ms S Phillips
Solicitor for the Applicants: South Australian Native Title Services
Counsel for the State of South Australia: Mr S Whitten with Ms E Moloney for the State of South Australia
Solicitor for the State of South Australia: Crown Solicitors Office
Counsel for the Commonwealth of Australia: The Commonwealth of Australia did not appear
Solicitor for the Local Council Respondents: Ms C Divakaran and Mr T Mellor, Mellor Olsson Lawyers
Solicitor for the Commercial Fishing Respondents: Ms C Divakaran and Mr T Mellor, Mellor Olsson Lawyers
Solicitor for South Australian Apiarists Association Inc: Ms C Divakaran and Mr T Mellor, Mellor Olsson Lawyers
Counsel for Telstra Corporation and Amplitel Pty Ltd: Telstra Corporation and Amplitel Pty Ltd did not appear
Counsel for SA Power Networks: SA Power Networks did not appear
SAD 228 of 2019 Counsel for the Applicant: Ms S Phillips
Solicitor for the Applicant: South Australian Native Title Services
Counsel for the State of South Australia: Mr S Whitten with Ms E Moloney for the State of South Australia
Solicitor for the State of South Australia: Crown Solicitors Office
Solicitor for the Local Council Respondents: Ms C Divakaran and Mr T Mellor, Mellor Olsson Lawyers
SAD 84 of 2021 Counsel for the Applicant: Ms S Phillips
Solicitor for the Applicant: South Australian Native Title Services
Counsel for the State of South Australia: Mr S Whitten with Ms E Moloney for the State of South Australia
Solicitor for the State of South Australia: Crown Solicitors Office
Counsel for the Commonwealth of Australia: The Commonwealth of Australia did not appear
Solicitor for the Local Council Respondents: Ms C Divakaran and Mr T Mellor, Mellor Olsson Lawyers
Solicitor for Wildcatch Fisheries of South Australia Inc: Ms C Divakaran and Mr T Mellor, Mellor Olsson Lawyers
SAD 63 of 2018 Counsel for the Applicant: Ms S Phillips
Solicitor for the Applicant: South Australian Native Title Services
Counsel for the State of South Australia: Mr S Whitten with Ms E Moloney for the State of South Australia
Solicitor for the State of South Australia: Crown Solicitors Office
Solicitor for the Local Council Respondents: Ms C Divakaran and Mr T Mellor, Mellor Olsson Lawyers
Solicitor for the Commercial Fishing Respondents: Ms C Divakaran and Mr T Mellor, Mellor Olsson Lawyers
Solicitor for South Australian Apiarists Association Inc: Ms C Divakaran and Mr T Mellor, Mellor Olsson Lawyers
Counsel for Telstra Corporation and Amplitel Pty Ltd: Telstra Corporation and Amplitel Pty Ltd did not appear
Counsel for SA Power Networks: SA Power Networks did not appear
ORDERS SAD 64 of 2022
WIRANGU NO 2 (PART B) NATIVE TITLE CLAIM BETWEEN: CAROLINE WILSON, ELIZABETH POOL, KENNETH WILSON, CINDY MORRISON, NEVILLE MILLER, VERNON MILLER and BARRY DEAN JOHNCOCK SENIOR Applicants
AND: STATE OF SOUTH AUSTRALIA Respondent
COMMONWEALTH OF AUSTRALIA Respondent
DISTRICT COUNCIL OF STREAKY BAY (and others named in the Schedule of Parties) Respondents
WIRANGU NO 3 (PART B) NATIVE TITLE CLAIM BETWEEN: CAROLINE WILSON, ELIZABETH POOL, KENNETH WILSON, CINDY MORRISON, NEVILLE MILLER, VERNON MILLER and BARRY DEAN (JACK) JOHNCOCK Applicants
AND: STATE OF SOUTH AUSTRALIA Respondent
DISTRICT COUNCIL OF ELLISTON Respondent
DISTRICT COUNCIL OF STREAKY BAY (and others named in the Schedule of Parties) Respondents
WIRANGU SEA CLAIM #2 (PART B) NATIVE TITLE CLAIM BETWEEN: NEVILLE BILNEY, CINDY MORRISON, CHERYL SAUNDERS, ELIZABETH POOL, HARRY MILLER, KAYLENE KERDEL, KEENAN SMITH and NEVILLE MILLER Applicants
AND: STATE OF SOUTH AUSTRALIA Respondent
COMMONWEALTH OF AUSTRALIA Respondent
DISTRICT COUNCIL OF ELLISTON (and others named in the Schedule of Parties) Respondents
NAUO #3 NATIVE TITLE CLAIM BETWEEN: BRENTON WEETRA, PAULINE BRANSON, CYNTHIA WEETRA-BUZZA and JODY MILLER Applicants
AND: STATE OF SOUTH AUSTRALIA Respondent
COMMONWEALTH OF AUSTRALIA Respondent
DISTRICT COUNCIL OF ELLISTON (and others named in the Schedule of Parties) Respondents
order made by: O'BRYAN J DATE OF ORDER: 10 FEBRUARY 2023
THE COURT NOTES THAT: A. Native Title Determination Application No SAD 64 of 2022 (Wirangu No 2 Application) was first lodged with the National Native Title Tribunal on 28 August 1997 and was transferred to this Court in 1998. It has been subject to various amendments since it was first filed. B. Native Title Determination Application No SAD 63 of 2018 (Nauo #3 Application) was filed in this Court on 16 March 2018 and was amended to reduce the area subject to the claim by amending Application filed on 8 December 2021. C. The Nauo #3 Application overlaps a portion of the Wirangu No 2 Application and, on 5 April 2018, Justice White ordered that the Wirangu No 2 Application be separated into two parts called "Wirangu No 2 Part A" and "Wirangu No 2 Part B", with Wirangu No 2 Part B and Nauo No 3 to be dealt with in the same proceedings. D. Native Title Determination Application No SAD 228 of 2019 (Wirangu No 3 Application) was filed in this Court on 28 October 2019. The Wirangu No 3 Application covers areas of land which were excluded from the Wirangu No 2 Application but which are now claimed in reliance on s 47B of the Native Title Act 1993 (NTA). E. On 26 November 2019 orders were made that the Wirangu No 3 Application be separated into two parts called "Wirangu No 3 Part A" and "Wirangu No 3 Part B" in conformity with the areas separated into Parts A and B in the Wirangu No 2 Application. F. Native Title Determination Application No SAD 84 of 2021 (Wirangu Sea Claim #2) was filed in this Court on 18 May 2021 and was amended to reduce the area subject to the claim by amending Application filed on 1 March 2022. On 3 June 2021, orders were also made separating the Wirangu Sea Claim #2 into Part A and Part B in conformity with the areas separated into Parts A and B in the Wirangu No 2 Application. G. Wirangu No 2 (Part B), Wirangu No 3 (Part B), Wirangu Sea Claim #2 (Part B) and Nauo #3 Applications were each listed for trial to commence on 2 August 2021 to determine whether native title exists in relation to any land and waters of the claim area and, to the extent that it does, who are the persons, or each group of persons, holding the common or group rights comprising the native title and the nature and extent of the native title rights and interests. H. The Wirangu and Nauo Applicants, the State of South Australia and the other respondents have now reached an agreed settlement of the Wirangu No 2 Part B, Wirangu No 3 Part B, Wirangu Sea Claim #2 (Part B) and the Nauo #3 Applications without the need to proceed with the trial. I. The terms of the agreed settlement are recorded in an Indigenous Land Use Agreement between the State and the Applicants (Wirangu Part B / Nauo No 3 Settlement ILUA) and in this Determination of native title. J. The Applicants and the State have agreed to enter into the Wirangu Part B / Nauo No 3 Settlement ILUA which, among other matters, provides that upon its registration the vesting of adjacent land and subjacent land in the Minister under s15(1)(a) of the Harbors and Navigation Act 1993 (SA) is a valid act to which the non-extinguishment principle applies. K. This Determination will take effect upon the registration of the Wirangu Part B / Nauo No 3 Settlement ILUA under Division 3 of Part 2 of the NTA. L. The Applicants and the State have carried out a comprehensive analysis of the tenure records for the claim area. The tenure position reflected in this Determination and the Wirangu Part B / Nauo No 3 Settlement ILUA represents a negotiated outcome that has been agreed between the parties. M. The Applicants and the State have entered into discussions in relation to a potential agreement to be made pursuant to s 47C(1)(b) of the NTA over Park Areas within the Determination Area. Upon the making of an agreement, an application to vary the Determination to reflect any such agreement in accordance with ss 13 and 47C of the NTA will be made. N. The Parties acknowledge that the effect of the making of this Determination will be to recognise that members of both the Nauo and Wirangu claimant groups, in accordance with the traditional laws acknowledged and the traditional customs observed by them, hold native title rights and interests in the Native Title Land (as defined in the orders below). 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 ss 87 and 87A of the NTA and by the consent of the parties,
THE COURT ORDERS THAT:
Interpretation 5. 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 Part 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) Customary Interest means the interests held by the Customary Interest Holders to access the Native Title Land and hunt, gather and enjoy the Natural Resources of the Native Title Land in accordance with the traditional laws and customs of the Native Title Holders; (d) Customary Interest Holders has the meaning given in paragraph 12; (e) Determination Area has the meaning given in paragraph 6; (f) HNA Land means Harbours and Navigation Act Land; (g) Native Title Holders has the meaning given in paragraph 11; (h) Native Title Land means the land and waters referred to in paragraph 7; and (i) Natural Resources means: (i) any animal, plant, fish and bird life found on or in the land and waters of the Native Title Land, including but not limited to medicinal plants, wild tobacco, feathers and resin; and (ii) any clays, soil, sand, gravel, rock or ochre found on or below the surface of the Native Title Land; that have traditionally been taken and used by the Native Title Holders, but does not include: (iii) animals that are the private personal property of another; (iv) crops that are the private personal property of another; and (v) minerals as defined in the Mining Act 1971 (SA) and petroleum as defined in the Petroleum and Geothermal Energy Act 2000 (SA); (j) NT means Native Title; (k) NTA means the Native Title Act 1993 (Cth); (l) NT Land means Native Title Land; (m) in the event of an inconsistency between a description of an area in a schedule and the depiction of that area on the maps in Schedule 2, the written description shall prevail.
Determination Area 6. The Determination Area comprises all of the land and waters within the external boundary of the area described at Schedule 1.
Areas within Determination Area where native title exists (Native Title Land) 7. Subject to Schedule 6, native title exists in the land and waters described in Schedules 3, 4 and 5. 8. Section 47B of the NTA applies to those parcels or parts of parcels described in Schedule 4. The prior extinguishment of native title over those areas is disregarded for the purpose of this Determination and native title exists in those parcels or parts of parcels in accordance with the terms of these orders. 9. In accordance with the agreement recorded in the Wirangu Part B / Nauo No 3 Settlement 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 s 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.
Areas within Determination Area where native title does not exist by virtue of extinguishment 10. Native title has been extinguished in those areas described in Schedule 6.
Native Title Holders 11. Under the traditional laws and customs acknowledged and observed by the Wirangu and Nauo people, the Native Title Holders are those living Aboriginal people who are the descendants whether by birth or traditional adoption from any of the following Wirangu and or Nauo antecedents: (i) Topsy Ahang; (ii) mother of Elizabeth Anderson; (iii) Jack Buckskin; (iv) Maria, Mother of Freddie Chester; (v) Eliza Ellen (and the descendants of her son Bob Ware and spouse Lucy Minjia, and her daughters Jinny and Dinah Ware); (vi) Yaldildi Johnny Gibera; (vii) Mary, mother of Henry Weetra; (viii) mother of Nellie Williams, and who identify as either Wirangu and/or Nauo and are recognised by the other Native Title Holders as having rights and interests in the Determination Area.
Customary Interest Holders 12. For the purpose of paragraph 13(i)(iii), Customary Interest Holders are those living Aboriginal people who, while not Native Title Holders in the Determination Area, are descendants whether by birth or traditional adoption from any of the following Wirangu and or Nauo antecedents: (i) Bilinyua and Kaltinya; (ii) Bobby Wandrooka; (iii) Eve or Eva Mary; (iv) Imbanga and her spouse Tjeltjinya; (v) Jack and Annie Wombat; (vi) Kulbula; (vii) siblings Nellie Dhulbalgurda, Frank and Kwana Ted Gray; (viii) the Wirangu mother of Ada Beagle; (ix) the Wirangu mother of siblings Jimmy and Arthur Richards; (x) Tjeira and her spouse Yari Wagon Billy; (xi) Wilubi; and (xii) Frederick Milerah.
Rights and Interests 13. Subject to paragraphs 14, 15 and 16 below, the nature and extent of the native title rights and interests of the Native Title Holders in the Native Title Land are the non-exclusive rights to use and enjoy those lands and waters, being: (a) the right of access, to be present on, move about on and travel over the Native Title Land; (b) the right to take, enjoy, share and exchange the Natural Resources of the Native Title Land for traditional purposes; (c) the right to use the natural water resources of the Native Title Land for traditional purposes; (d) the right to conduct ceremonies on the Native Title Land; (e) the right to maintain and protect sites and places of cultural significance under the traditional laws and customs of the Native Title Holders on the Native Title Land; (f) the right to teach on the Native Title Land the physical and spiritual attributes of the Native Title Land; (g) the right to hold meetings on the Native Title Land; (h) the right to light fires on the Native Title Land for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and (i) the right to be accompanied onto the Native Title Land by those people who, although not Native Title Holders, recognise and are bound by the traditional laws and customs of the Native Title Holders and who are: (i) spouses of Native Title Holders; or (ii) people required by traditional law and custom for the performance of cultural activities on the Native Title Land; or (iii) Customary Interest Holders.
General Limitations 14. The native title rights and interests described in paragraph 13 do not confer possession, occupation, use and enjoyment of the land and waters on the Native Title Holders to the exclusion of others. 15. The native title rights and interests set out at paragraph 13 are subject to and exercisable in accordance with: (a) the traditional laws acknowledged and traditional customs observed by the Native Title Holders; and (b) the laws of the State and Commonwealth. 16. For the avoidance of doubt, the native title interest expressed in paragraph 13(c) (the right to use natural water resources) is subject to the Landscapes South Australia Act 2019 (SA).
Other Interests and Relationship with Native Title 17. The nature and extent of other interests in the Native Title Land are: (a) the interests of the Crown in right of the State of South Australia; (b) the interests of the 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); (ii) the rights or interests of any person or persons validly granted or created in accordance with the National Parks and Wildlife Act 1972 (SA); and (iii) the rights and interests of the public to use and enjoy those reserves consistent with the National Parks and Wildlife Act 1972 (SA); (d) the rights and interests of the Crown in right of the State of South Australia pursuant to the Harbors and Navigation Act 1993 (SA); (e) the interests of the Aboriginal Lands Trust in the lands set out in Schedule 4 pursuant to the Aboriginal Lands Trust Act 1966 (SA); (f) 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; (g) rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth; (h) 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; (i) the rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Southern Bluefin Tuna Fishery, the Western Tuna and Billfish Fishery and the Southern and Eastern Scalefish and Shark Fishery, and permits issued for the Western Skipjack Tuna Fishery; (j) the rights and interests of the State and the Native Title Holders pursuant to the Wirangu Part B / Nauo No 3 Settlement ILUA; (k) the rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd (ACN 648 133 073), any related bodies corporate and successors in title: (i) as the owner or operator of telecommunications facilities within the 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), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: • to inspect land; • to install, occupy and operate telecommunications facilities; and • 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 Determination Area in performance of their duties; and (iv) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities within the Determination Area; (l) the rights, interests and entitlements of SA Power Networks (a partnership of Spark Infrastructure SA (No. 1) Pty Ltd, Spark Infrastructure SA (No. 2) Pty Ltd, Spark Infrastructure SA (No. 3) Pty Ltd, CKI Utilities Development Limited and PAI Utilities Development Limited) and its related and successor entities, including its rights, interests and entitlements: (i) to exercise its entitlements and discharge its obligations as the owner and/or operator of electricity infrastructure (as defined in the Electricity Act 1996 (SA) (Electricity Act) and telecommunications facilities and infrastructure within the Determination Area including but not limited to existing infrastructure identified in Schedule 7 (Existing Infrastructure); (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 including but not limited to the easements identified in Schedule 7 (Easements); (vi) to provide its employees, agents or contractors with access to Existing Infrastructure, New Infrastructure and the Easements within 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; (m) the rights and interests of each of the District Council of Streaky Bay, the Wudinna District Council, and the District Council of Elliston 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); (n) 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). 18. The relationship between the native title rights and interests in the Native Title Land that are described in paragraph 13 and the other rights and interests that are described in paragraph 17 (Other Interests) is that: (a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of the NTA or the Native Title (South Australia) Act 1994 (SA), do not extinguish them; and (c) in relation to the land and waters set out in Schedule 4, 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.
AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS: 19. The native title is to be held in trust. 20. The Wirangu and Nauo Aboriginal Corporation (ICN 9901), a prescribed body corporate, is to hold the rights and interests from time to time comprising the native title in trust for the Native Title Holders. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
External Boundary Description Commencing at the intersection of the centreline of the Eyre Highway road reserve with the centreline of the Cocata Road road reserve [being a point on the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)]; then generally south-easterly along the centreline of the Eyre Highway road reserve to its intersection with the centreline of the Elliston Stock Route road reserve [being along a portion of the western portion of the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)]. Then generally south-westerly along the centreline of the Elliston Stock Route road reserve to the point Longitude 135.550658 East, Latitude 33.133682 South; south-westerly to the point Longitude 135.548236 East, Latitude 33.135118 South; north-westerly to the point Longitude 135.543903 East, Latitude 33.134353 South [being a point on the centreline of the Elliston Stock Route road reserve]; generally south-westerly along the centreline of the Elliston Stock Route road reserve to its intersection with the centreline of the Mount Wedge Road road reserve; generally south-westerly along the centreline of the Mount Wedge Road road reserve to its intersection with the prolongation north-westerly of the north-eastern boundary of Section 36, Hundred of Kappakoola; south-easterly along the said prolongation to the northern-most corner of Section 36, Hundred of Kappakoola; generally south-easterly, generally southerly and westerly along the north-eastern, eastern and southern boundaries of said Section 36; southerly and westerly along the eastern and southern boundaries of Section 15, Hundred of Cocata to the south-western corner of said Section 15; westerly along the prolongation westerly of the southern boundary of Section 15, Hundred of Cocata to its intersection with the centreline of the Mount Wedge Road road reserve; generally south-westerly along the centreline of the Mount Wedge Road road reserve until it becomes the centreline of the Kyancutta-Mount Wedge Road road reserve; generally south-westerly along the centreline of the Kyancutta-Mount Wedge Road road reserve to its intersection with the centreline of the Birdseye Highway road reserve; generally south-westerly along the centreline of the Birdseye Highway road reserve to its intersection with the centreline of the Flinders Highway road reserve; south-westerly in a straight line to the intersection of mainland Lowest Astronomical Tide with Longitude 134.891566 East; south-westerly along the prolongation of said straight line to its intersection with a line 10 metres seaward of mainland Lowest Astronomical Tide [being along the north-western portion of the external boundary of native title claim Nauo (SAD6021/1998)]. Then generally north-westerly along a coastal boundary inclusive of the following: • all waters and natural features 10 metres seaward of mainland Lowest Astronomical Tide; • all waters and natural features 50 metres seaward of mainland Lowest Astronomical Tide of easily accessible beaches as identified by the State and applicants as defined in the following table (coordinates are approximate and subject to survey): Accessible Beach Longitude East Latitude South Longitude East Latitude South 1 134.839139 33.622091 134.801873 33.328625 2 134.747973 33.286522 134.740088 33.278564 3 134.693873 33.258668 134.686636 33.250082 4 134.657800 33.226131 134.640664 33.227793
• all waters and natural features within Waterloo Bay enclosed by a straight line extending from Longitude 134.874215 East, Latitude 33.652026 South to Longitude 134.862809 East, Latitude 33.644993 South; • all waters and natural features surrounding and including a portion of land known as Walkers Rock bounded by a line commencing at Longitude 134.857126 East, Latitude 33.555677 South, being a point on a line 50 metres seaward of mainland Lowest Astronomical Tide. Then generally northerly and north-westerly through the following coordinate points: Longitude East Latitude South 134.857118 33.555530 134.857103 33.555399 134.857080 33.555282 134.857048 33.555176 134.857007 33.555082 134.856956 33.554996 134.856896 33.554918 134.856824 33.554847 134.856748 33.554787 134.856661 33.554731 134.856560 33.554677 134.856444 33.554624 134.856302 33.554568 134.856132 33.554509 134.855948 33.554450
the latter being a point on a line 50 metres seaward of Lowest Astronomical Tide southerly of a portion of land known as Walkers Rock, then generally north-westerly, northerly, north-easterly, easterly and south-easterly along said line to the point Longitude 134.856861 East, Latitude 33.553472 South. Then generally south-easterly and easterly through the following coordinate points: Longitude East Latitude South 134.857007 33.553581 134.857094 33.553635 134.857183 33.553684 134.857274 33.553727 134.857368 33.553764 134.857471 33.553798 134.857578 33.553826 134.857690 33.553848 134.857808 33.553864 134.857931 33.553875 134.858062 33.553880 134.858356 33.553875
the latter being a point on a line 50 metres seaward of mainland Lowest Astronomical Tide. • all waters and natural features within Venus Bay enclosed by a straight line extending from Longitude 134.660613 East, Latitude 33.230053 South to Longitude 134.660091 East, Latitude 33.227137 South; to its intersection with a straight line from the northern-most corner of Allotment 3 in Deposited Plan 26699 to Longitude 134.391364 East, Latitude 33.333146 South; north-easterly in a straight line to the northern-most corner of Allotment 3 in Deposited Plan 26699; easterly in a straight line to the point of commencement. Data Reference and source Cadastral and Lowest Astronomical Tide data sourced from Department for Trade and Investment (9 August 2022). Reference datum Geographical coordinates are referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees. Use of Coordinates 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.
SCHEDULE 2 Part A: Map of the External Boundaries of the Determination Area
SCHEDULE 2 Part B: Maps depicting Native Title Land
SCHEDULE 3 Land and waters where native title exists (Native Title Land) Note: Please refer to maps provided in Schedule 2 Part B for further detail where a portion of a parcel is indicated. DCDBID Hundred Title Ref. Native Title Status Native Title Status - Portion Remainder H650100S2 ADDISON CR5772/891 NT Exists H650100S27 ADDISON CR5772/891 NT Exists H650100S28 ADDISON CR5772/891 NT Exists H650100S3 ADDISON CR5772/891 NT Exists H650100S4 ADDISON CR5772/891 NT Exists H650100S5 ADDISON CR5772/891 NT Exists D26395A52 COCATA CR6006/943 NT Exists D31914A23 (portion) COCATA CR5772/130 NT Exists NT Extinguished H640100S12 COCATA CR5772/885 NT Exists H640100S20 COCATA CR5767/690 NT Exists D29068A10 (portion) COLTON CR5772/924 NT Exists NT Extinguished H550300S201 COLTON CR5772/924 NT Exists H550300S202 COLTON CR5772/924 NT Exists H550300S203 COLTON CR5772/924 NT Exists H550300S204 COLTON CR5756/343 NT Exists H550300S205 COLTON CR5267/142 NT Exists H550300S206 COLTON CR5763/119 NT Exists H550300S209 COLTON CR5756/344 NT Exists H550300S210 COLTON CR5756/345 NT Exists H550300S211 COLTON CR5756/346 NT Exists H550300S212 COLTON CR5772/924 NT Exists H550300S221 COLTON CR5257/150 NT Exists D52680A12 (portion) DOWNER CR5734/975 NT Exists NT Land (s47B NTA) D73776A14 (portion) DOWNER CR5993/188 NT Exists NT Land (s47B NTA) H650700S256 DOWNER CR5756/396 NT Exists H650700S264 DOWNER CR5763/305 NT Exists H650700S265 DOWNER CR5756/397 NT Exists H650700S266 (portion) DOWNER CR5756/398 NT Exists NT Extinguished H650700S286 (portion) DOWNER CR5756/399 NT Exists NT Extinguished H650700S287 DOWNER CR5772/924 NT Exists H640500S36 KAPPAKOOLA CR6006/943 NT Exists F257116Q2 (portion) OH(ELLISTON) CL6259/642 PE002280 NT Exists NT Extinguished H835500B402 OH(ELLISTON) CL6213/770 PE002510 NT Exists H835500S102 OH(ELLISTON) CR5775/148 NT Exists D25893A50 PORDIA CR6006/943 NT Exists H641200S33 PORDIA CR5759/777 NT Exists H641200S35 PORDIA CR5759/778 NT Exists D60777A5 (portion) ROUNSEVELL CR5967/49 NT Exists NT Extinguished H651600S184 ROUNSEVELL CR5771/273 NT Exists H551600S191 TALIA CR5756/362 NT Exists H551600S193 TALIA CR5763/149 NT Exists H551700S156 TINLINE CR5756/364 NT Exists H651900S1 TRAVERS CR5772/893 NT Exists H651900S20 TRAVERS CR5772/893 NT Exists H651900S57 TRAVERS CR5763/331 NT Exists D25212A100 WALLIS CR5775/148 NT Exists F257116Q3 WALLIS CL6259/642 PE002280 NT Exists H652000S19 WALLIS CR5775/148 NT Exists H652000S20 WALLIS CR5775/148 NT Exists H652000S21 WALLIS CR5775/148 NT Exists H652000S24 WALLIS CR5775/148 NT Exists H652000S25 WALLIS CR5775/148 NT Exists H652000S27 WALLIS CR5775/148 NT Exists H652000S28 WALLIS CR5775/148 NT Exists H652000S36 WALLIS CR5763/332 NT Exists H652000S7 WALLIS CR5775/148 NT Exists D71537Q31 WANNAMANA CR5986/786 NT Exists D71537Q32 WANNAMANA CR5986/786 NT Exists T641401A15 WANNAMANA CR5755/40 NT Exists T641401A16 WANNAMANA CR5755/40 NT Exists T641401A17 WANNAMANA CR5767/747 NT Exists T641401A18 WANNAMANA CR5767/748 NT Exists T641401A19 WANNAMANA CR5767/749 NT Exists T641401A20 WANNAMANA CR5767/750 NT Exists T641401A21 WANNAMANA CR5763/278 NT Exists T641401A22 WANNAMANA CR5763/279 NT Exists T641401A23 WANNAMANA CR5767/751 NT Exists T641401A24 WANNAMANA CR5767/752 NT Exists T641401A25 WANNAMANA CR5767/753 NT Exists T641401A26 WANNAMANA CR5767/754 NT Exists T641401A27 WANNAMANA CR5767/755 NT Exists T641401A28 WANNAMANA CR5767/756 NT Exists T641401A29 WANNAMANA CR5767/757 NT Exists T641401A59 WANNAMANA CR5767/770 NT Exists T641401A60 WANNAMANA CR5767/771 NT Exists T641401A61 WANNAMANA CR5767/772 NT Exists T641401A62 WANNAMANA CR5767/773 NT Exists T641401A63 WANNAMANA CR5767/774 NT Exists T641401A64 WANNAMANA CR5767/775 NT Exists T641401A65 WANNAMANA CR5767/776 NT Exists T641401A66 WANNAMANA CR5767/777 NT Exists D24795A106 (portion) WARD CR5752/752 NT Exists NT Extinguished D25299A1 (portion) WARD CR5752/752 NT Exists NT Extinguished D29193A3 WARD CR5752/752 NT Exists H551900S1 WARD CR5756/367 NT Exists H551900S3 WARD CR5756/368 NT Exists H551900S373 WARD CR5752/752 NT Exists H551900S383 WARD CR5756/376 NT Exists H551900S384 WARD CR5756/376 NT Exists H551900S398 WARD CR5756/367 NT Exists H551900S401 WARD CR5752/752 NT Exists H551900S402 WARD CR6212/526 NT Exists H551900S403 WARD CR5767/601 NT Exists H551900S409 WARD CR5763/152 NT Exists H551900S413 WARD CR5763/154 NT Exists H551900S420 WARD CR5756/385 NT Exists H652100S86 WITERA CR5763/334 NT Exists H652100S87 WITERA CR5763/335 NT Exists H652100S88 WITERA CR5763/336 NT Exists H652100S89 WITERA CR5763/337 NT Exists H652100S91 WITERA CR5763/339 NT Exists D29315A2 WRIGHT CR5756/408 NT Exists D32749A3 (portion) WRIGHT CR6029/854 NT Exists NT Extinguished D33601A20 (portion) WRIGHT CR6029/853 NT Exists NT Land (s47B NTA) D34138A51 (portion) WRIGHT CR5752/757 NT Exists NT Extinguished D34608A62 (portion) WRIGHT CR5772/120 NT Exists NT Extinguished D34878A30 (portion) WRIGHT CR5752/758 NT Exists NT Extinguished D35532A50 (portion) WRIGHT CR5752/758 NT Exists NT Extinguished D57656A1 WRIGHT CR5864/890 NT Exists D61364A71 (portion) WRIGHT CR5924/333 NT Exists NT Extinguished D75662A95 (portion) WRIGHT CR6010/435 NT Exists NT Land (s47B NTA) F257116Q1 WRIGHT CL6259/642 PE002280 NT Exists H652300S47 WRIGHT CR5772/459 NT Exists H652300S48 WRIGHT CR5772/459 NT Exists H652300S54 WRIGHT CR5752/758 NT Exists H652300S56 WRIGHT CR5772/897 NT Exists H652300S57 WRIGHT CR5772/897 NT Exists H652300S58 WRIGHT CR5772/897 NT Exists H652300S70 WRIGHT CR5756/405 NT Exists H652300S77 (portion) WRIGHT CR5756/406 NT Exists NT Extinguished H652300S79 WRIGHT CR5756/407 NT Exists H652300S81 WRIGHT CR5763/345 NT Exists H652300S86 WRIGHT CR5756/408 NT Exists H652300S91 WRIGHT CR5752/758 NT Exists H652300S94 WRIGHT CR5771/289 NT Exists H652300S95 WRIGHT CR5756/408 NT Exists H652300S97 WRIGHT CR5756/409 NT Exists H652300S98 WRIGHT CR5756/405 NT Exists T652301A1 WRIGHT CR5763/346 NT Exists T652301A2 WRIGHT CR5763/347 NT Exists T652301A3 WRIGHT CR5771/290 NT Exists H641700S84 YANINEE CR5768/803 NT Exists
SCHEDULE 4 Areas where extinguishment of native title is to be disregarded due to the operation of s47B of the Native Title Act 1993 Note: Please refer to maps provided in Schedule 2 Part B for further detail where a portion of a parcel is indicated. Section 47B Parcels DCDBID Hundred Title Reference Native Title Status Native Title Status - Portion Remainder D77121A10 COLTON CR6036/965 NT Land (s47B NTA) D77121A15 COLTON CR6036/969 NT Land (s47B NTA) D77121A8 COLTON CR6036/963 NT Land (s47B NTA) D77121A9 COLTON CR6036/964 NT Land (s47B NTA) D77121Q11 COLTON CR6036/966 NT Land (s47B NTA) D77121Q12 COLTON CR6036/966 NT Land (s47B NTA) H550300S192 COLTON CR5767/536 NT Land (s47B NTA) H550300S197 COLTON CR5747/725 NT Land (s47B NTA) D52680A12 (portion) DOWNER CR5734/975 NT Land (s47B NTA) NT Exists D73776A14 (portion) DOWNER CR5993/188 NT Land (s47B NTA) NT Exists D77121A13 DOWNER CR6036/967 NT Land (s47B NTA) H651600S175 ROUNSEVELL CR5763/323 NT Land (s47B NTA) T641401A30 WANNAMANA CR5767/758 NT Land (s47B NTA) H551900S400 WARD CR6212/525 NT Land (s47B NTA) D32749A2 WRIGHT CR6029/853 NT Land (s47B NTA) D32749A4 WRIGHT CR6029/853 NT Land (s47B NTA) D33601A20 (portion) WRIGHT CR6029/853 NT Land (s47B NTA) NT Exists D34138A53 WRIGHT CR5763/771 NT Land (s47B NTA) D75662A95 (portion) WRIGHT CR6010/435 NT Land (s47B NTA) NT Exists D93078A31 WRIGHT CR6130/839 NT Land (s47B NTA) H652300S21 WRIGHT CR5887/284 NT Land (s47B NTA)
SCHEDULE 5 Areas where native title exists pursuant to the Wirangu Part B Nauo No 3 Settlement ILUA Note: Please refer to maps provided in Schedule 2 Part B for further detail where a portion of a parcel is indicated. DCDBID Hundred Title Ref. Native Title Status Native Title Status - Portion Remainder D40280A10 (portion) COLTON CR5267/143 NT Extinguished NT Exists Pursuant to ILUA (HNA Land) Mean High Water Mark - Lowest Astronomical Tide COLTON NT Exists Pursuant to ILUA (HNA Land) Mean High Water Mark - Lowest Astronomical Tide DOWNER NT Exists Pursuant to ILUA (HNA Land) Sea Waters OH(ELLISTON) NT Exists Pursuant to ILUA (HNA Land) D60777A6 ROUNSEVELL CR5967/50 NT Exists Pursuant to ILUA (HNA Land) Mean High Water Mark - Lowest Astronomical Tide ROUNSEVELL NT Exists Pursuant to ILUA (HNA Land) Mean High Water Mark - Lowest Astronomical Tide WARD NT Exists Pursuant to ILUA (HNA Land) Mean High Water Mark - Lowest Astronomical Tide WRIGHT NT Exists Pursuant to ILUA (HNA Land)
SCHEDULE 6 Areas where native title does not exist Note: Please refer to maps provided in Schedule 2 Part B for further detail where a portion of a parcel is indicated. Schedule 6
SCHEDULE 7 Existing interests of SA Power Networks ASSETS - CONDUCTORS CT REF ASSET TYPE VOLTAGE PARCEL ID HUNDRED CR6006 943 Overhead Low Voltage Service Conductor 240V D26395A52 COCATA CR5257 150 Underground Low Voltage Service Conductor 240V H550300S221 COLTON CR6006 943 Overhead High Voltage Conductor 66kV H640500S36 KAPPAKOOLA CR5967 49 Overhead Low Voltage Service Conductor 240V D60777A5 ROUNSEVELL CR5967 49 Overhead High Voltage Conductor 19kV D60777A5 ROUNSEVELL CR5967 49 Overhead Low Voltage Service Conductor 240V D60777A5 ROUNSEVELL CR5967 49 Overhead High Voltage Conductor 19kV D60777A5 ROUNSEVELL CR5763 149 Overhead High Voltage Conductor 19kV H551600S193 TALIA CR5763 149 Underground Low Voltage Service Conductor 240V H551600S193 TALIA CR5763 332 Underground Low Voltage Service Conductor 240V H652000S36 WALLIS CR5763 332 Overhead High Voltage Conductor 19kV H652000S36 WALLIS CR5986 786 Overhead High Voltage Conductor 11kV D71537Q31 WANNAMANA CR5986 786 Overhead High Voltage Conductor 11kV D71537Q32 WANNAMANA CR5763 278 Overhead High Voltage Conductor 11kV T641401A21 WANNAMANA CR5257 150 Underground Low Voltage Service Conductor 240V H550300S221 WARD CR5752 752 Underground Low Voltage Service Conductor 433V D24795A106 WARD CR5752 752 Overhead Low Voltage Conductor 433V D24795A106 WARD CR5752 752 Underground Low Voltage Service Conductor 433V D24795A106 WARD CR5752 752 Overhead Low Voltage Conductor 433V D24795A106 WARD CR5752 752 Overhead High Voltage Conductor 11kV D25299A1 WARD CR5752 752 Overhead Low Voltage Conductor 433V D25299A1 WARD CR5752 752 Overhead High Voltage Conductor 11kV D25299A1 WARD CR5752 752 Overhead Low Voltage Conductor 433V D25299A1 WARD CR5752 752 Underground Low Voltage Service Conductor 433V D29193A3 WARD CR5756 368 Overhead Low Voltage Service Conductor 433V H551900S3 WARD CR5752 752 Underground Low Voltage Service Conductor 433V H551900S373 WARD CR5763 152 Underground Low Voltage Service Conductor 240V H551900S409 WARD CR5763 335 Overhead High Voltage Conductor 19kV H652100S87 WITERA CR5763 336 Overhead High Voltage Conductor 19kV H652100S88 WITERA CR5763 337 Overhead High Voltage Conductor 19kV H652100S89 WITERA CR5763 337 Overhead High Voltage Conductor 19kV H652100S89 WRIGHT CR6029 854 Underground Low Voltage Service Conductor 240V D32749A3 WRIGHT CR6029 854 Overhead Low Voltage Service Conductor 240V D32749A3 WRIGHT CR6029 854 Overhead High Voltage Conductor 11kV D32749A3 WRIGHT CR6029 854 Underground Low Voltage Service Conductor 240V D32749A3 WRIGHT CR6029 854 Overhead Low Voltage Service Conductor 240V D32749A3 WRIGHT CR6029 854 Overhead High Voltage Conductor 11kV D32749A3 WRIGHT CR5752 757 Underground Low Voltage Service Conductor 433V D34138A51 WRIGHT CR5752 757 Underground Low Voltage Service Conductor 433V D34138A51 WRIGHT CR5772 120 Overhead High Voltage Conductor 11kV D34608A62 WRIGHT CR5772 120 Overhead Low Voltage Service Conductor 433V D34608A62 WRIGHT CR5772 120 Overhead High Voltage Conductor 11kV D34608A62 WRIGHT CR5772 120 Overhead Low Voltage Service Conductor 433V D34608A62 WRIGHT CR5752 758 Overhead Low Voltage Service Conductor 240V D35532A50 WRIGHT CR5752 758 Overhead High Voltage Conductor 11kV D35532A50 WRIGHT CR5752 758 Underground Low Voltage Service Conductor 240V D35532A50 WRIGHT CR5752 758 Overhead Low Voltage Service Conductor 240V D35532A50 WRIGHT CR5752 758 Overhead High Voltage Conductor 11kV D35532A50 WRIGHT CR5752 758 Underground Low Voltage Service Conductor 240V D35532A50 WRIGHT CR6010 435 Overhead High Voltage Conductor 11kV D75662A95 WRIGHT CR6010 435 Overhead High Voltage Conductor 11kV D75662A95 WRIGHT CR5756 407 Overhead High Voltage Conductor 11kV H652300S79 WRIGHT CR5756 407 Overhead Low Voltage Service Conductor 240V H652300S79 WRIGHT CR5756 409 Overhead Low Voltage Conductor 433V H652300S97 WRIGHT CR5756 405 Overhead Low Voltage Conductor 433V H652300S98 WRIGHT
ASSETS - TRANSFORMERS CT REF COUNT ASSET TYPE PARCEL ID HUNDRED CR5967 49 2 Pole Mounted Transformer D60777A5 ROUNSEVELL CR5967 49 2 Pole Mounted Transformer D60777A5 ROUNSEVELL CR5763 149 1 Pole Mounted Transformer H551600S193 TALIA CR5763 332 1 Pole Mounted Transformer H652000S36 WALLIS CR5752 752 1 Pole Mounted Transformer D25299A1 WARD CR5752 752 1 Pole Mounted Transformer D25299A1 WARD CR5752 758 3 Pole Mounted Transformer D35532A50 WRIGHT CR5752 758 3 Pole Mounted Transformer D35532A50 WRIGHT CR6029 854 2 Pole Mounted Transformer D32749A3 WRIGHT CR6029 854 2 Pole Mounted Transformer D32749A3 WRIGHT
SCHEDULE OF PARTIES SAD 64 of 2022 WIRANGU NO 2 (PART B) NATIVE TITLE CLAIM Respondents Respondent: TELSTRA CORPORATION LIMITED Respondent: AMPLITEL PTY LTD AS TRUSTEE OF THE TOWERS BUSINESS OPERATING TRUST (ABN 75 357 171 746) Respondent: DISTRICT COUNCIL OF ELLISTON Respondent: MERVYN H MARWOOD Respondent: LINDSAY DENE BOTT Respondent: BARTHOLOMEW BRETT BUTSON Respondent: ROBERT JOHN BUTSON Respondent: ROBERT ASHLY CHAMBERS Respondent: WALTER PHILIP COOPER Respondent: DAVID ENGE Respondent: MARIO FABRIS Respondent: DONALD GEORGE FEAST Respondent: DAVID JOHN FOSTER Respondent: DAVID FARADAY GILL Respondent: SHANNON MAUREEN GILL Respondent: ROBERT JOHN HARDING Respondent: WARREN E LUDWIG Respondent: KYM BRYAN MALLYON Respondent: SIMON MANNERS Respondent: HAYDN JOHN O'BRIEN Respondent: STEWART JOHN BUTSON Respondent: GRAHAM GORDON FILMER Respondent: SHAYNE MICHAEL FITZGERALD Respondent: TONY KINGDON Respondent: BRIAN K MUNDY Respondent: ANNE ELIZABETH TAPLEY Respondent: GRAHAM MARK TAPLEY Respondent: BRENTON E TYRRELL Respondent: CONSTRUCTION DIVERS PTY LTD Respondent: TONY D CUSTANCE Respondent: JEFFERY PAUL WAIT Respondent: SCOTT WEAVER Respondent: JOHN C HAAGMANS Respondent: WILLIAM JOHN HENDRY Respondent: LA CLOTURE FISHERIES PTY LTD Respondent: JAMES DOUGLAS BANKS Respondent: ROY JAMES BANKS Respondent: ALAN PAYNE Respondent: PHILIP PENALURICK Respondent: LAKKANA BOONMAJAROEN Respondent: JOHN DUDURA Respondent: T GARNAUT NOMINEES PTY LTD Respondent: LEON CHARLES WRIGHT Respondent: EF HENDRY PTY LTD Respondent: CHRISTOPHER FEWSTER Respondent: WILLIAM PHILIP HADLOW Respondent: GF HARROWFIELD Respondent: DE HARROWFIELD Respondent: PETER LAGOUDAKIS Respondent: CRAIG DAVID MCCATHIE Respondent: JOHN PALEOLOGOUDIAS Respondent: ALLEN FRANCIS JAMES PITTAWAY Respondent: MERVYN ALLAN PITTAWAY Respondent: ANDREW CHARLES PUGLISI Respondent: S & Z LUKIN PTY LTD Respondent: KENNETH JOHN SINCOCK Respondent: ANTONIO PETER YANCIC Respondent: JUNE ROSEMARY GILL Respondent: KINNOCK PTY LTD Respondent: NAVAJO PTY LTD Respondent: JOHN LEO FLAHERTY Respondent: DAVID LINDSAY APPLEBY Respondent: CHRISINDA PTY LTD Respondent: JOHN FILIPPIDIS Respondent: DW HALL Respondent: REGINALD GILBY SMART Respondent: WILDCATCH FISHERIES SA INC Respondent: WUDINNA DISTRICT COUNCIL Respondent: SA POWER NETWORKS (FORMERLY KNOWN AS ETSA UTILITIES) Respondent: SOUTH AUSTRALIAN APIARISTS ASSOCIATION
SAD 228 of 2019 WIRANGU NO 3 (PART B) NATIVE TITLE CLAIM Respondents Respondent: WUDINNA DISTRICT COUNCIL
SAD 84 of 2021 WIRANGU SEA CLAIM #2 (PART B) NATIVE TITLE CLAIM Respondents Respondent: WUDINNA DISTRICT COUNCIL Respondent: WILDCATCH FISHERIES OF SOUTH AUSTRALIA INC Respondent: DISTRICT COUNCIL OF STREAKY BAY
SAD 63 of 2018 NAUO #3 NATIVE TITLE CLAIM Respondents Respondent: SA POWER NETWORKS Respondent: AMPLITEL PTY LTD AS TRUSTEE OF THE TOWERS BUSINESS OPERATING TRUST (ABN 75 357 171 746) Respondent: DISTRICT COUNCIL OF STREAKY BAY Respondent: TELSTRA CORPORATION LIMITED ABN 33 051 775 556 Respondent: WUDINNA DISTRICT COUNCIL Respondent: JOHN BUCKLEY Respondent: JETHRO WILD Respondent: R & G ROWE PROPERTIES PTY LTD Respondent: KLINKEM PTY LTD Respondent: KONSTANTINE PALEOLOGOUDIAS Respondent: LEON VAN WEENEN Respondent: TRENT GREGORY Respondent: HUBERT BRIAN HURRELL Respondent: NICK FRANGOS Respondent: DEEP VENTURE NOMINEES PTY LTD Respondent: KONTIAS DEVELOPMENTS PTY LTD Respondent: MICHAEL SAMPSON Respondent: WILDCATCH FISHERIES OF SOUTH AUSTRALIA INCORPORATED Respondent: SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC Respondent: NICHOLAS PALEOLOGOUDIAS
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 Wirangu and Nauo peoples in respect of an area of land and waters in the west of the Eyre Peninsula in South Australia, from the coast just south of Elliston to a point on the coast north of Venus Bay stretching inland to the Eyre Highway from Wudinna to Kyancutta. 2 The determination is made in the following proceedings (relevant proceedings): (a) applications made on behalf of the Wirangu People in proceedings SAD 64 of 2022 Wirangu No 2 Part B (Wirangu No 2B), SAD 228 of 2019 Wirangu No 3 (Wirangu No 3B) and SAD 84 of 2021 Wirangu Sea Claim #2 Part B (Wirangu Sea Claim #2B); and (b) application made on behalf of the Nauo people in proceeding SAD 63 of 2018 Nauo #3 (Nauo #3). 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 Wirangu people and 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 ss 87 and 87A of the Act. The parties rely on s 87 in respect of Nauo #3 as the agreement relates to all of the area covered by that application. The parties rely on s 87A in respect of Wirangu No 2B, Wirangu No 2B and Wirangu Sea Claim #2B as the agreement relates to the relevant Part B areas of those applications (being the areas overlapped by Nauo #3). The determination has been made by consent pursuant to the Court's powers under ss 87 and 87A of the NTA. 5 These are my reasons for making the determination sought by the parties.
Filing, notification and partition of the applications 6 The Wirangu people lodged the Wirangu No 2 application over land in the south western part of the Eyre Peninsula in South Australia on 28 August 1997 in the National Native Title Tribunal (application numbered SC1997/006). Following amendment of the NTA in 1998, from 30 September 1998 Wirangu No 2 became a proceeding in the Federal Court numbered SAD 6019 of 1998, recently renumbered SAD 64 of 2022. Wirangu No 2 was entered on the Register of Claims by the Registrar of the National Native Title Tribunal on 28 August 1997 and, as amended over time, has remained registered. The application was notified under s 66 on 7 February 2001, with the period specified in the notice ending on 7 May 2018. 7 The Nauo people filed the Nauo #3 application over land which wholly overlapped the southern part of the Wirangu No 2 application in the Federal Court on 16 March 2018. The application was notified under s 66 on 22 August 2018, with the period specified in the notice ending on 21 November 2018. 8 On 5 April 2018, Justice White made orders under s 67 of the NTA that Wirangu No 2 be separated into two parts to be called "Wirangu No 2 Part A" and "Wirangu No 2 Part B". Wirangu No 2A comprised that portion of Wirangu No 2 not overlapped by Nauo #3. Wirangu No 2B comprised the southern part of the Wirangu No 2 claim area overlapped by Nauo #3. 9 On 28 October 2019, the Wirangu people filed the Wirangu No 3 application over small parcels of land within the boundary of Wirangu No 2 in reliance upon s 47B NTA so that any prior extinguishment over those parcels which had become vacant Crown land since the lodgment of Wirangu No 2 would be disregarded. The application was notified under s 66 on 22 April 2020, with the period specified in the notice ending on 21 July 2020. 10 On 26 November 2019, orders were made under s 67 of the NTA that Wirangu No 3 be separated into Part A and Part B in conformity with the areas separated into Parts A and B in Wirangu No 2. 11 On 18 May 2021, the Wirangu people filed the Wirangu Sea Claim #2 over the waters below the low water mark off shore from Wirangu No 2. The application was notified under s 66 on 11 August 2021, with the period specified in the notice ending on 10 November 2021. 12 On 3 June 2021, orders were also made under s 67 of the NTA separating the Wirangu Sea Claim #2 into Part A and Part B in conformity with the areas separated into Parts A and B in Wirangu No 2. 13 On 8 December 2022, Charlesworth J made a determination of the native title rights and interests of the Wirangu people in respect of Parts A of the three Wirangu claims (Wirangu No 2A, Wirangu No 3A and Wirangu Sea Claim #2A) by consent of the parties pursuant to s 87A of the NTA: Wilson, on behalf of the Wirangu People v State of South Australia (No 2) [2022] FCA 1460.
The claim areas 14 The claim areas lie along the west of the Eyre Peninsula from the coast just south of Elliston to a point on the coast north of Venus Bay stretching inland to the Eyre Highway from Wudinna to Kyancutta. Specifically: (a) Wirangu No 2B and Nauo #3 cover almost 3,500 sq km of land. Wirangu No 2B ceases at the shoreline above the Lowest Astronomical Tide. The coastal boundary of Nauo #3 extends below the Lowest Astronomical Tide seaward to 10 metres along the cliffs and 50 metres off shore from easily accessible beaches. Onshore the boundary lies along the western Eyre Peninsula from (in the south) a coastal point south east of Elliston, north along the coastline to a point north west of Venus Bay, turning north east for approximately 8 km then inland in a straight line east to the Eyre Highway at a point just north of Wudinna. The boundary then follows the Eyre Highway south to Kyancutta turning southwest back to the point on the coast south of Elliston. The claim areas lie within the local government areas of the District Council of Streaky Bay, Wudinna District Council and the District Council of Elliston. (b) Wirangu No 3B covers a number of relatively small individual parcels of land lying within the external boundary of Wirangu No 2B and Nauo #3, beside the shoreline of Venus Bay south of Port Kenny, along the coast south of Venus Bay and around Lake Newland, with a total area of less than 34 sq km, being parcels of land formerly subject to exclusive possession acts but returned to the Crown at different times after Wirangu No 2 was lodged. By reason of s 64(1) of the NTA, a separate claim was required to include those parcels as land where native title could be recognised. (c) Wirangu Sea Claim #2B covers the waters offshore from Wirangu No 2B below the Lowest Astronomical Tide seaward to 10 metres and including, as does Nauo #3: (i) all internal islands and waters of Venus Bay seaward of the Lowest Astronomical Tide; (ii) all internal waters of Waterloo Bay seaward of the Lowest Astronomical Tide; and (iii) seaward 50 metres from the Lowest Astronomical Tide of easily accessible beaches as defined in the proposed orders. 15 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 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 Wirangu and Nauo peoples, 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. 16 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 Samphire Flats and Lake Newland, a natural saline lake 20 km in length, being the most extensive wetland on Eyre Peninsula. Lake Newland lies at the base of a range of sand hills separating it from the sea. Fresh water springs feed into the lake and bird life such as Cape Barren geese, wild duck, snipe, shelduck and migratory waders can be found. Lake Newland and connected water systems are very significant sites for the Seven Sisters (Pleiades) Dreaming that travels the length of the Eyre Peninsula. These are very important spiritually imbued areas for Wirangu and Nauo peoples who have the responsibility to protect. 17 The claim areas include the extensive Kulliparu and Cocata conservation areas that cover more than 300 sq km of intact mallee and broombush habitat protecting rare and delicate flora and fauna.
European settlement of the claim areas 18 From 1788 to 1825, the British colony of New South Wales (NSW) extended westwards to 135° east longitude (about 10 km east of the township of Elliston). The land further to the west, which includes the claim areas, 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. 19 Effective sovereignty for the claim areas 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 at Venus Bay in 1853. 20 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 Wirangu and Nauo peoples. 21 Venus Bay, Port Kenny and Elliston are the primary residential hubs within the claim areas. Most of the Wirangu and Nauo claimants live in the small towns scattered throughout the Eyre Peninsula. As shown by the statements made by members of the claim group (referred to below), the claimants, their families and forebears have occupied and found work within the claim areas continuously since colonists arrived. 22 Following the enactment of the NTA, in 1997 Wirangu and Nauo peoples commenced their efforts to secure recognition of their native title rights and interests held under their traditional laws and customs in the claim areas. 23 Since prior to its filing and continuously since then, the Wirangu and 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 24 By the end of the notification periods in respect of each of the applications, persons who provided Forms 5 within the notification period were joined as parties to the proceedings including local government bodies and parties with fishing, pastoral or commercial interests within the claim area. In the course of the proceedings, some parties have withdrawn, some have been added and the joinder of others was refused (see Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829). The current parties to the claims are listed in Schedule 8 to the proposed determination. All parties consent to the proposed consent determination.
History of the applications 25 When originally lodged, Wirangu No 2 covered a larger area than shown by the present boundaries of the claim. It overlapped with the Barngarla claim (SAD 6011 of 1998 lodged on 4 April 1996) and was subsequently overlapped by Nauo (SAD 6021 of 1998 - now SAD 65 of 2022 lodged on 17 November 1997). 26 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 the Court on 12 March 1999 and on 25 January 2000. 27 The large Nauo claim's external boundaries were also amended in 1999 substantially reducing its claim area, including withdrawing from any overlap with the Wirangu No 2 claim. The filing of Nauo #3 in 2018, following the Barngarla determination (in 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 its traditional country from which the earlier Nauo claim had been withdrawn, creating the overlap with Wirangu No 2. 28 On 5 November 2018, Justice White made orders programming for hearing certain questions in relation to the existence of native title in Wirangu No 2A. On 16 October 2019, orders vacating the trial of the Wirangu Part A proceedings were made so that the parties could develop the form of determination appropriate to resolve those proceedings by consent. As noted earlier, a determination of native title was made on 8 December 2022 by Justice Charlesworth in respect of Parts A of the three Wirangu claims (Wirangu No 2A, Wirangu No 3A and Wirangu Sea Claim #2A) by consent of the parties pursuant to s 87A of the NTA: Wilson, on behalf of the Wirangu People v State of South Australia (No 2) [2022] FCA 1460. 29 On 18 December 2019, Justice White made orders programming for hearing certain questions in relation to the existence of native title in (relevantly) Parts B of the Wirangu claims and the Nauo #3 claim. That trial was due to commence on 2 August 2021. 30 In April 2021, a conference between the experts for the Wirangu people, the experts for the Nauo people and the experts for the State took place. The outcome of that conference resulted in the parties exploring the possibility of resolution of the proceedings by consent. This led to suspension of the trial programming orders on 19 July 2021 and their vacation on 28 September 2021. 31 As part of the outcome of those negotiations, on 8 December 2021 Nauo #3 was amended to, amongst other things, reduce the offshore boundary of the claim area. On 1 March 2022, the Wirangu Sea Claim #2 was also amended to reduce the boundaries of the offshore area in accordance with matters agreed between the Wirangu and Nauo Applicants, the State and the Commonwealth.
Evidence filed in the proceedings 32 In the course of the Wirangu and Nauo claims, the Applicants have filed evidence from members of the claim groups and expert anthropological evidence. That lay evidence comprised: (a) Wirangu outlines of evidence and/or s 47B affidavits from claimants Veda Betts, Neville Miller, Wendy Ware, Vernon 'Penong' Miller, Susie Betts, Jack Johncock, Sandra Miller, Haydn Davey, Elizabeth Pool, Sandy Ware, Malcolm Bilney, Wayne Maurice Miller (deceased) and Allan Wilson (deceased); and (b) Nauo outlines of evidence and/or s 47B affidavits from claimants Brenton Weetra, Danielle A'Hang, Jody Miller, Pauline Branson, Jo-Anne Miller, Michael Miller, David Buzza, Jason Ramp, Mark Larking and Cynthia Buzza. 33 The following expert anthropological reports were filed: (a) for Wirangu, by Dr Philip Clarke, Mr Jeffery Stead and Ms Lyn Coad; (b) for Nauo, by Dr Scott Cane and Dr Belinda Leibelt; and (c) for the State, by Dr Kingsley Palmer (and a historical report by Mr Tom Gara). 34 As noted above, in April 2021 a conference of experts occurred, following which a joint report was produced recording substantial agreement between the experts on key propositions discussed. 35 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 discussed below and the proposed consent determination.
Indigenous Land Use Agreement and Prescribed Body Corporate 36 By an affidavit affirmed on 2 February 2023, Ella Moloney (a solicitor employed by the Crown Solicitor's Office for the State) deposed that the Applicants and the State of South Australia had agreed the terms of an indigenous land use agreement (Settlement ILUA) in connection with the settlement of the relevant proceedings by the proposed consent determination. The Settlement ILUA will be executed by the Applicants, the State and the proposed prescribed body corporate for the determination (Wirangu and Nauo Aboriginal Corporation), which would also be a party to the ILUA upon the registration of that body corporate. 37 By an affidavit affirmed on 3 February 2023, Bianca Lena (Acting Principal Legal Officer for South Australian Native Title Services and the legal representative for the Wirangu Applicants and the acting legal representative for the Nauo Applicant) deposed that, at authorisation meetings held in Adelaide on 14 October 2022 (at which Ms Lena was present), members of the Wirangu and members of the Nauo native title claim groups, in separate meetings, each resolved unanimously to nominate the Wirangu and Nauo Aboriginal Corporation to be the prescribed body corporate to hold their native title on trust. The parties tendered a copy of the Certificate of Registration of the Wirangu and Nauo Aboriginal Corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), having the Indigenous Corporation Number 9901. 38 The State and the Applicants agree that the proposed consent determination of native title will take effect upon the registration of the Settlement ILUA under Div 3 of Pt 2 of the NTA. 39 Among other matters, the Settlement ILUA records the parties agreement (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. The Settlement ILUA also provides for 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 40 The parties seek orders by consent from the Court pursuant to s 87 of the NTA (in respect of Nauo #3) and s 87A of the NTA (in respect of Wirangu No 2B, Wirangu No 2B and Wirangu Sea Claim #2B). 41 Under each of ss 87 and 87A, the Court is empowered to make an order in, or consistent with, the terms agreed between the parties without holding a hearing if: (a) the period specified in the notice given under s 66 has ended (s 87(1), s 87A(1)(b)); (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), 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) has been filed with the Court (s 87(1)(a), (aa) and (b), s 87A(1)(c), (d) and (2)); (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), s 87A(4)(a)); and (d) the Court is satisfied that it is appropriate to make the order (s 87(1A), s 87A(4)(b). 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 42 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 43 A minute of consent determination in respect of all of the relevant proceedings, signed on behalf of all of the parties to the relevant proceedings (including the Commonwealth which is a party to Wirangu No 2B, Wirangu Sea Claim #2B and Nauo #3), 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 ss 87 and 87A 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. 44 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 45 As observed by Mortimer J in Freddie v Northern Territory [2017] FCA 867 (Freddie) (at [15]), in order to be satisfied that the proposed orders are within the power of the Court, consideration must be given to the requirements in the NTA that must be met in respect of any determination of native title. In that regard, I have given particular consideration to 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) 46 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) 47 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. 48 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 13 to 16 of the proposed determination. Paragraph 14 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 17 of the proposed determination. (e) The relationship between the native title rights and interests and the other interests is set out in paragraph 18 of the proposed determination.
Section 55 (whether native title held in trust and prescribed body corporate) 49 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 question whether the native title is to be held in trust) and s 57 (which deals with the determination of a prescribed body corporate and its functions). 50 The proposed consent determination contains orders to the effect that the native title is to be held in trust and that the Wirangu and Nauo Aboriginal Corporation is to be the prescribed body corporate for the purposes of s 57(1) of the NTA (which should properly be a reference to s 56(2)(b)). 51 Before making those orders, s 56(2) requires that the Court receive a written nomination from a representative of the native title holders of Wirangu and Nauo Aboriginal Corporation to be trustee of the native title, together with the written consent of that body corporate, and the Court must be satisfied that Wirangu and Nauo Aboriginal Corporation is a prescribed body corporate within the meaning of the NTA. 52 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. Regulation 4 provides as follows: 4 Prescribed bodies corporate (Act s 59) (1) An Aboriginal and Torres Strait Islander corporation is prescribed for section 59 of the Act if it is registered for the purpose of being the subject of a section 56 or 57 determination. (2) An Aboriginal and Torres Strait Islander corporation is taken to be registered for the purpose of being the subject of a section 56 or 57 determination only if: (a) the purpose of becoming a registered native title body corporate is set out in the objects of the corporation; and (b) all members of the corporation are: (i) persons who, at the time of making of the section 56 or 57 determination, are included, or are proposed to be included, in the native title determination as native title holders; or (ii) persons to whom the persons mentioned in subparagraph (i) have consented; and (c) at all times after the section 56 or 57 determination is made, all members of the corporation are: (i) persons who have native title rights and interests in relation to the land or waters to which the native title determination relates; or (ii) persons, or a class of persons, to whom the persons mentioned in subparagraph (i) have consented; and (d) the corporation meets the Indigeneity requirement mentioned in section 295 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006. 53 Regulation 3 stipulates that the expression "Aboriginal and Torres Strait Islander corporation" has the same meaning as in the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act), which is a corporation registered under that Act. 54 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, a matter which has been highlighted by some recent cases in the Court: 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. Initially, the proposed consent determination in these proceedings was not supported by any evidence showing that: first, the Wirangu and Nauo peoples had nominated Wirangu and Nauo Aboriginal Corporation to be the prescribed body corporate to hold their native title in trust; second, the Wirangu and Nauo Aboriginal Corporation had consented to so act; and third, the Wirangu and Nauo Aboriginal Corporation is a prescribed body corporate. As noted earlier, the Court has now received evidence concerning the nomination by the Wirangu and Nauo peoples of Wirangu and Nauo Aboriginal Corporation to be the prescribed body corporate to hold their native title in trust, that company's consent to so act and its registration under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). In the present proceedings and on the basis of the evidence that has been filed, the Court is willing to infer that the other regulatory requirements to be a prescribed body corporate have been satisfied, although ordinarily it would be helpful to the Court to receive affidavit evidence confirming all necessary requirements have been fulfilled.
Condition (d) - it is appropriate to make the proposed order 55 As noted earlier, under each of ss 87 and 87A, the Court is empowered to make an order in, or consistent with, the terms agreed between the parties without holding a hearing if the Court is satisfied that it is appropriate to make the order. 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]. Justice Mortimer recently gave comprehensive consideration to the issue of appropriateness in the context of s 87(1A) in Freddie and in Agius v State of South Australia (No 6) [2018] FCA 358 (Agius). 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) 56 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]). 57 In the present case, I am satisfied that it is appropriate to make the consent determination for the following reasons. 58 First, the agreement that has been reached between the parties is the culmination of a lengthy period of investigation and negotiation. 59 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. 60 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. 61 Fourth, the parties have filed lay and expert evidence which together shows that the agreement of the parties to the proposed consent determination has a reasonable and rational basis. 62 In reaching this conclusion, it is relevant to note two aspects of the proposed consent determination. First, the proposed determination recognises both the Wirangu people and the Nauo people as holding native title rights and interests in the claim area. In paragraph 11 of the proposed consent determination, the native title holders are defined in the following terms: Under the traditional laws and customs acknowledged and observed by the Wirangu and Nauo people the Native Title Holders are those living Aboriginal people who are the descendants whether by birth or traditional adoption from any of the following Wirangu and or Nauo antecedents: i. Topsy Ahang; ii. Mother of Elizabeth Anderson; iii. Jack Buckskin; iv. Maria, Mother of Freddie Chester; v. Eliza Ellen (and the descendants of her son Bob Ware and spouse Lucy Minjia, and her daughters Jinny and Dinah Ware); vi. Yaldildi Johnny Gibera; vii. Mary, mother of Henry Weetra; viii. Mother of Nellie Williams. and who identify as either Wirangu and/or Nauo and are recognised by the other Native Title Holders as having rights and interests in the Determination Area (together the Native Title Holders). 63 The native title rights and interests of the Native Title Holders are set out in paragraph 13 of the proposed consent determination. The recognition of both the Wirangu people and the Nauo people as holding native title rights and interests in the claim area is supported by the agreement of all of the anthropological experts, expressed in their joint report filed in the proceedings, with the proposition that those who occupied the claim area at sovereignty were likely to have recognised commonality and commensality (shared laws and customs) by the use of a number of names, including Wirangu and Nauo, and that both languages were likely to have been spoken in the claim area at sovereignty. By their agreement to the proposed consent determination, the parties can be taken to have agreed that the evidence supports the conclusion that, under the traditional laws and customs acknowledged and observed by the Wirangu and Nauo peoples, the above identified Native Title Holders hold native title rights and interests in the claim area. Having regard to the evidence that has been filed, I am satisfied that there is a proper basis for the parties' agreement. 64 The second aspect of the proposed consent determination that should be noted is paragraph 9 which states as follows: In accordance with the agreement recorded in the Wirangu Part B / Nauo No 3 Settlement 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. 65 As noted earlier, under the 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 ILUA has been registered on the Register of Indigenous Land Use Agreements).
Conclusion 66 In conclusion, I am satisfied that the proposed consent determination should be made. The native title rights and interests of the Wirangu and Nauo peoples in the areas of land and sea that are the subject of the applications should be formally recognised in the proposed consent determination under the NTA. 67 It is appropriate to record that this determination of native title does not create native title in the determination area. Rather, it marks the recognition by the Australian legal system of the Wirangu people's and Nauo people's long held native title in this land which has existed, according to the traditional laws and customs of the Wirangu and Nauo peoples, since long before this determination today and before the time of the assertion of British sovereignty. 68 The Court commends the parties and their representatives for bringing this matter to a conclusion by way of agreement. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.
Wilson on behalf of the Wirangu People and Weetra on behalf of the Nauo People
State of South Australia