© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2022] FCA 1460
Federal Court of Australia
2022-12-08
Charlesworth J
Original judgment source is linked above.
Division: General Division
Registry: South Australia
National Practice Area: Native Title
Number of paragraphs: 31
Date of last submission: Applicant: 23 November 2022
Date of hearing: Determined on the papers
SAD 64 of 2022 Counsel for the Applicant: Ms S Phillips
Solicitor for the Applicant: South Australian Native Title Services
Counsel for the State of South Australia: Attorney-General for the State of South Australia with Mr S Whitten
Solicitor for the State of South Australia: Crown Solicitors Office
Counsel for the Commonwealth of Australia: The Commonwealth of Australia did not appear
Counsel for the Local Government: The Local Government did not appear
Counsel for the Commercial Fishers: The Commercial Fishers did not appear
Counsel for the South Australian Apiarists Association: The South Australian Apiarists Association did not appear
Counsel for Telstra Corporation: The Telstra Corporation did not appear
Counsel for SA Power Networks: The 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: Attorney-General for the State of South Australia with Mr S Whitten
Solicitor for the State of South Australia: Crown Solicitors Office
Counsel for the Local Government: The Local Government did not appear
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: Attorney-General for the State of South Australia with Mr S Whitten
Solicitor for the State of South Australia: Crown Solicitors Office
Counsel for the Commonwealth of Australia: The Commonwealth of Australia did not appear
Counsel for the Local Government: The Local Government did not appear
Counsel for Wildcatch Fisheries of South Australia: The Wildcatch Fisheries of South Australia did not appear
ORDERS SAD 64 of 2022
WIRANGU NO 2 PART A NATIVE TITLE CLAIM BETWEEN: CAROLINE WILSON, ELIZABETH POOL, KENNETH WILSON, CINDY MORRISON, NEVILLE MILLER, VERNON MILLER and BARRY DEAN JOHNCOCK SENIOR Applicant
AND: STATE OF SOUTH AUSTRALIA Respondent
COMMONWEALTH OF AUSTRALIA Respondent
DISTRICT COUNCIL OF STREAKY BAY (and others named in the Schedule of Parties) Respondent
WIRANGU NO 3 PART A NATIVE TITLE CLAIM BETWEEN: CAROLINE WILSON, ELIZABETH POOL, KENNETH WILSON, CINDY MORRISON, NEVILLE MILLER, VERNON MILLER and BARRY DEAN (JACK) JOHNCOCK Applicant
AND: STATE OF SOUTH AUSTRALIA Respondent
DISTRICT COUNCIL OF ELLISTON Respondent
DISTRICT COUNCIL OF STREAKY BAY (and another named in the Schedule of Parties) Respondent
WIRANGU SEA CLAIM NO 2 PART A NATIVE TITLE CLAIM BETWEEN: NEVILLE BILNEY, CINDY MORRISON, CHERYL SAUNDERS, ELIZABETH POOL, HARRY MILLER, KAYLENE KERDEL, KEENAN SMITH and NEVILLE MILLER Applicant
AND: STATE OF SOUTH AUSTRALIA Respondent
COMMONWEALTH OF AUSTRALIA Respondent
DISTRICT COUNCIL OF ELLISTON (and others named in the Schedule of Parties) Respondent
order made by: CHARLESWORTH J DATE OF ORDER: 8 DECEMBER 2022
Preamble A. Native Title Determination Application 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. B. Native Title Determination Application 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 (Cth). C. Native Title Determination Application SAD 84 of 2021 (Wirangu Sea Claim No 2) was filed in this Court on 18 May 2021 and claims waters abutting the Wirangu No 2 Application. The area of waters claimed was significantly reduced by an Amending Application filed on 1 March 2022. D. The Wirangu No 2 Application, Wirangu No 3 Application and the Wirangu Sea Claim No 2 Application (Wirgangu Applications) are partially overlapped by the Nauo No 3 native title claim (SAD 63 of 2018) which was filed in this Court on 20 March 2018 (Nauo Overlapping Claim). E. By Orders of the Court each of the Wirangu Applications were separated into two parts being "Part A" and "Part B". F. The Wirangu Applications Part B comprise that part of the Application areas that are subject to the Nauo Overlapping Claim and are being dealt with in separate proceedings. G. Part A of the Wirangu No 2 Application was listed for trial to commence on 4 November 2019 to determine whether native title exists in relation to any land and waters of the Part A 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 Applicant, the State of South Australia and the other respondents have now reached an agreed settlement of Part A of the Wirangu Applications without the need to proceed to trial. In reaching this settlement all parties have negotiated in good faith and with full advice from their legal representatives, including Counsel, and experts. The terms of the agreed settlement are recorded in an Indigenous Land Use Agreement between the State and the Wirangu People (Wirangu Part A Settlement ILUA) and in this Determination of native title. I. This Determination will take effect upon the registration of the ILUA under Div 3 of Pt 2 of the Native Title Act 1993 (Cth). J. The applicant and the State have entered into the Wirangu Part A Settlement ILUA which, among other matters, provides that upon its registration 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. K. In reaching agreement to settle this claim the parties have carried out a comprehensive analysis of the tenure records for the Part A area. On 2 April 2020 a separate question was referred to the Federal Court of Australia concerning whether native title was extinguished over certain parcels of land dedicated to the District Council of Streaky Bay (Streaky Bay Golf Course). In Wilson v State of South Australia (No 4) [2020] FCA 1805 the Court determined that native title had not been wholly extinguished over the relevant parcels. An appeal from that judgment was dismissed by the Full Court on 18 October 2021 (District Council of Streaky Bay v Wilson (2021) 287 FCR 538). L. The tenure position reflected in this Determination and the Wirangu Part A Settlement ILUA represents a negotiated outcome that has been agreed between the parties and the outcome of the separate question regarding the Streaky Bay Golf Course. M. The parties acknowledge that, upon the making of this Determination, the members of the native title claim group described below, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the Native Title Holders for the Native Title Land. Being satisfied that a determination in the terms sought by the parties would be within the power of the Court and it appearing to the Court appropriate to do so pursuant to s 87A of the Native Title Act 1993 (Cth):
THE COURT ORDERS THAT:
External boundary description of the Determination Area Commencing at the south-western-most corner of Section 45, Hundred of Petina (Port Lincoln - Thevenard Railway corridor / Tod River Pipeline parcel) [being a point on the external boundary of Far West Coast Determination Area (SCD2013/002) and the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)]; then south-easterly along the south-western boundaries of Section 20, Hundred of Perlubie and Section 59, Hundred of Walpuppie to the southern-most corner of the said Section 59; south-westerly along the prolongation south-westerly of the south-eastern boundary of Section 59, Hundred of Walpuppie to its intersection with the centreline of the Eyre Highway road reserve; generally south-easterly along the centreline of the Eyre Highway road reserve to its intersection with the centreline of the Cocata Road road reserve [being along a portion of the western portion of the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)]. Then westerly in a straight line to the northern-most corner of Allotment 3 in Deposited Plan 26699; south-westerly in a straight line toward the point Longitude 134.391364 East, Latitude 33.333146 South to its intersection with a line 10 metres seaward of Lowest Astronomical Tide [being along the northern portion of the external boundary of Nauo #3 Native Title Claim (SC2018/001)]. Then generally north-westerly along a coastal boundary inclusive of the following: all waters and natural features 10 metres seaward of Lowest Astronomical Tide; all waters and natural features 50 metres seaward of 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 1 134.467671 33.153150 134.451418 33.146572 2 134.380619 33.174255 134.366907 33.182087 3 134.263997 33.133003 134.259762 33.116962 4 134.260742 33.108743 134.257586 33.094629 5 134.234951 33.051013 134.221956 33.040110 6 134.183404 33.013282 134.145824 32.938081 7 134.123744 32.931809 134.102278 32.916103 8 134.100429 32.866672 134.134013 32.844039 9 134.130166 32.808211 134.091969 32.751772
all waters and natural features within Baird Bay enclosed by a straight line extending from Longitude 134.358389 East, Latitude 33.187207 South to Longitude 134.352691 East, Latitude 33.188359 South; all of Jones Island and surrounding waters and natural features 10 metres seaward of Lowest Astronomical Tide (at the entrance of Baird Bay) to a point being the intersection of a line 10 metres seaward of Lowest Astronomical Tide with a line extending south-westerly from the western-most point at Lowest Astronomical Tide of Cape Bauer at approximately Longitude 134.060159 East, Latitude 32.723396 South to the intersection of a line 300 metres seaward of Lowest Astronomical Tide with Latitude 32.724291 South. Then north-easterly in a straight line to the western-most point at Lowest Astronomical Tide of Cape Bauer at approximately Longitude 134.060159° East, Latitude 32.723396° South; generally easterly, generally southerly, generally northerly and generally north-westerly along Lowest Astronomical Tide to the south-east corner of the Hundred of Wallanippie [being along a portion of the eastern portion of the external boundary of native title claim Far West Coast Sea Claim (SC2016/001)]. Then northerly along the eastern boundary of the Hundred of Wallanippie to the south-west corner of the Hundred of Carawa; easterly along the southern boundaries of the Hunderd of Carawa and the Hundred of Petina to the point of commencement [being along a portion of the southern portion of the external boundary of Far West Coast Determination Area (SCD2013/002)]. Data Reference and source Cadastral and Lowest Astronomical Tide data sourced from Attorney-General's Department (24 March 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.
Part A: Map of the External Boundaries of the Determination Area
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 H650100S15 ADDISON CR5775/148 NT Exists H650100S23 ADDISON CR5775/148 NT Exists H650100S24 ADDISON CR5775/148 NT Exists H650400S45 CHANDADA CR5763/291 NT Exists H650600S102 CUNGENA CR5763/296 NT Exists H650600S103 CUNGENA CR5763/297 NT Exists H650600S104 CUNGENA CR5771/164 NT Exists H650600S94 CUNGENA CR5771/162 NT Exists D69780A100 (portion) FINLAYSON CR5981/848 NT Exists NT Land (s47B NTA) D79924A68 (portion) FINLAYSON CR6062/486 NT Exists NT Land (s47B NTA) H650800S40 FINLAYSON CR5755/903 NT Exists H650800S45 FINLAYSON CR5771/249 NT Exists H650800S46 FINLAYSON CR5771/250 NT Exists H650900S77 FORREST CR5771/252 NT Exists D30252A11 (portion) HASLAM CR5772/925 NT Exists NT Extinguished D71453A3 (portion) HASLAM CR5998/405 NT Exists NT Land (s47B NTA) D76834A102 (portion) HASLAM CR6019/689 NT Exists NT Land (s47B NTA) H610300S53 (portion) HASLAM CR5755/972 NT Exists NT Extinguished H610300S86 HASLAM CR5768/705 NT Exists H610300S87 HASLAM CR5768/706 NT Exists H610300S89 HASLAM CR5768/708 NT Exists H610300S90 HASLAM CR5768/709 NT Exists H651000S45 INKSTER CR5763/309 NT Exists H640800S114 MINNIPA CR6199/371 NT Exists H640800S115 MINNIPA CR6196/860 NT Exists H640800S63 MINNIPA CR5767/696 NT Exists D36188A31 MOORKITABIE CR5775/148 NT Exists H651300S14 MOORKITABIE CR5746/486 NT Exists H651300S19 MOORKITABIE CR5775/148 NT Exists D33124A2 OH(ELLISTON) CR5754/936 NT Exists H852200S953 OH(ELLISTON) CR5772/896 NT Exists D31587A1 OH(STREAKY BAY) CR5773/883 NT Exists H841900S868 OH(STREAKY BAY) CR5773/883 NT Exists H641300S130 PYGERY CR5755/22 NT Exists H641300S148 PYGERY CR5755/26 NT Exists D30979A200 (portion) RIPON CR5898/133 NT Exists NT Extinguished D30979A201 (portion) RIPON CR5898/133 NT Exists NT Extinguished H651500S132 (portion) RIPON CR5755/910 NT Exists NT Extinguished H651500S134 (portion) RIPON CR5898/132 NT Exists NT Extinguished H651500S327 (portion) RIPON CR5898/133 NT Exists NT Extinguished H651500S360 (portion) RIPON CR5758/109 NT Exists NT Extinguished H651500S369 RIPON CR5771/262 NT Exists H651500S370 RIPON CR5771/263 NT Exists H651500S374 RIPON CR5472/286 NT Exists H651500S381 RIPON CR5763/320 NT Exists H651500S382 RIPON CR5737/425 NT Exists H651500S383 RIPON CR5763/321 NT Exists H651500S385 RIPON CR5755/921 NT Exists T651501A208 RIPON CR5771/267 NT Exists T651501A209 RIPON CR5268/605 NT Exists D60777A5 (portion) ROUNSEVELL CR5967/49 NT Exists NT Land (s47B NTA) D79647A102 (portion) ROUNSEVELL CR6026/769 NT Exists NT Land (s47B NTA) D79647A103 (portion) ROUNSEVELL CR6026/770 NT Exists NT Land (s47B NTA) H651600S174 ROUNSEVELL CR5749/662 NT Exists H651600S176 ROUNSEVELL CR5746/493 NT Exists H651600S178 ROUNSEVELL CR5746/494 NT Exists H651600S179 ROUNSEVELL CR5746/495 NT Exists H651600S96 ROUNSEVELL CR5746/491 NT Exists H651600S97 ROUNSEVELL CR5746/492 NT Exists D54084A105 (portion) SCOTT CR5800/427 NT Exists NT Land (s47B NTA) D54084A106 (portion) SCOTT CR5800/427 NT Exists NT Land (s47B NTA) D56777A123 SCOTT CR5915/159 NT Exists D70670A104 (portion) SCOTT CR5968/865 NT Exists NT Extinguished H651700S20 (portion) SCOTT CR5746/498 NT Exists NT Extinguished H651700S21 (portion) SCOTT CR5746/499 NT Exists NT Extinguished H651700S23 SCOTT CR5763/324 NT Exists H651700S8 SCOTT CR5758/711 NT Exists H611000S53 WALPUPPIE CR5755/894 NT Exists H652100S85 WITERA CR5763/333 NT Exists H652100S86 WITERA CR5763/334 NT Exists H652100S90 WITERA CR5763/338 NT Exists D112266A71 WRENFORDSLEY CR6172/319 NT Exists D41664A25 (portion) WRENFORDSLEY CR5291/297 NT Exists NT Extinguished D41664A29 (portion) WRENFORDSLEY CR5326/823 NT Exists NT Extinguished & NT Land (s47B NTA) D41664A30 WRENFORDSLEY CR5291/296 NT Exists D57907A1 WRENFORDSLEY CR5988/510 NT Exists D89639A91 (portion) WRENFORDSLEY CR6146/599 NT Exists NT Land (s47B NTA) H652200S181 WRENFORDSLEY CR5772/896 NT Exists H652200S182 WRENFORDSLEY CR5771/276 NT Exists H652200S183 WRENFORDSLEY CR5771/277 NT Exists H652200S184 WRENFORDSLEY CR5771/278 NT Exists H652200S221 WRENFORDSLEY CR5763/344 NT Exists H652200S222 WRENFORDSLEY CR5979/900 NT Exists H652200S225 WRENFORDSLEY CR5771/281 NT Exists H652200S226 WRENFORDSLEY CR5771/282 NT Exists H652200S227 WRENFORDSLEY CR5771/283 NT Exists H652200S228 WRENFORDSLEY CR5771/284 NT Exists H652200S229 WRENFORDSLEY CR5746/502 NT Exists H652200S230 WRENFORDSLEY CR5746/503 NT Exists H652200S231 WRENFORDSLEY CR5746/504 NT Exists H652200S232 WRENFORDSLEY CR5771/285 NT Exists H652200S235 WRENFORDSLEY CR5771/286 NT Exists H652200S237 WRENFORDSLEY CR5771/287 NT Exists H652200S242 WRENFORDSLEY CR5746/507 NT Exists H652200S243 WRENFORDSLEY CR5755/930 NT Exists H652200S255 WRENFORDSLEY CR5979/899 NT Exists H652200S62 WRENFORDSLEY CR5772/894 NT Exists D28977A5 YANINEE CR5748/150 NT Exists
Areas where extinguishment of native title is to be disregarded due to the operation of s47A or 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 47A Parcels DCDBID HUNDRED TITLE REF. NATIVE TITLE STATUS NATIVE TITLE STATUS - Portion Remainder H651500S321 RIPON CT5515/917 NT Land (s47A NTA)
Section 47B Parcels DCDBID Hundred Title Ref. NT Status NT Status - Portion Remainder H650400S49 CHANDADA CR5768/841 NT Land (s47B NTA) H650400S50 CHANDADA CR5768/842 NT Land (s47B NTA) H650400S51 CHANDADA CR5768/843 NT Land (s47B NTA) H650400S52 CHANDADA CR5768/844 NT Land (s47B NTA) H650400S53 CHANDADA CR5768/845 NT Land (s47B NTA) H650400S54 CHANDADA CR5768/846 NT Land (s47B NTA) H650400S55 CHANDADA CR5768/847 NT Land (s47B NTA) H650400S56 CHANDADA CR5768/848 NT Land (s47B NTA) H650400S57 CHANDADA CR5768/849 NT Land (s47B NTA) H650400S58 CHANDADA CR5768/850 NT Land (s47B NTA) H650400S59 CHANDADA CR5768/851 NT Land (s47B NTA) H650400S60 CHANDADA CR5768/852 NT Land (s47B NTA) D40623A8 FINLAYSON CR5295/192 NT Land (s47B NTA) D40623A9 FINLAYSON CR5295/192 NT Land (s47B NTA) D69780A100 (portion) FINLAYSON CR5981/848 NT Land (s47B NTA) NT Exists D79924A68 (portion) FINLAYSON CR6062/486 NT Land (s47B NTA) NT Exists H650800S32 FINLAYSON CR5771/247 NT Land (s47B NTA) D71453A3 (portion) HASLAM CR5998/405 NT Land (s47B NTA) NT Exists D76834A102 (portion) HASLAM CR6019/689 NT Land (s47B NTA) NT Exists D74584A9 RIPON CR5993/10 NT Land (s47B NTA) D77326A503 RIPON CR6033/73 NT Land (s47B NTA) H651500S346 RIPON CR5763/317 NT Land (s47B NTA) H651500S358 RIPON CR6111/403 NT Land (s47B NTA) H651500S359 RIPON CR6111/403 NT Land (s47B NTA) H651500S375 RIPON CR5771/265 NT Land (s47B NTA) H651500S378 RIPON CR5771/266 NT Land (s47B NTA) D125221A72 ROUNSEVELL CR6253/763 NT Land (s47B NTA) D60777A5 (portion) ROUNSEVELL CR5967/49 NT Land (s47B NTA) NT Exists D79647A102 (portion) ROUNSEVELL CR6026/769 NT Land (s47B NTA) NT Exists D79647A103 (portion) ROUNSEVELL CR6026/770 NT Land (s47B NTA) NT Exists D54084A105 (portion) SCOTT CR5800/427 NT Land (s47B NTA) NT Exists D54084A106 (portion) SCOTT CR5800/427 NT Land (s47B NTA) NT Exists H651700S19 SCOTT CR5771/275 NT Land (s47B NTA) D111276A1052 WRENFORDSLEY CR6167/162 NT Land (s47B NTA) D112266Q72 WRENFORDSLEY CR6172/320 NT Land (s47B NTA) D112266Q73 WRENFORDSLEY CR6172/320 NT Land (s47B NTA) D38621A301 WRENFORDSLEY CR5750/610 NT Land (s47B NTA) D38621A302 WRENFORDSLEY CR5748/254 NT Land (s47B NTA) D38929A204 WRENFORDSLEY CR5748/255 NT Land (s47B NTA) D41664A29 (portion) WRENFORDSLEY CR5326/823 NT Land (s47B NTA) NT Extinguished & NT Exists D89639A91 WRENFORDSLEY CR6146/599 NT Land (s47B NTA) NT Exists (portion) H652200S158 WRENFORDSLEY CR5898/971 NT Land (s47B NTA) H652200S159 WRENFORDSLEY CR5898/971 NT Land (s47B NTA) H652200S160 WRENFORDSLEY CR5898/971 NT Land (s47B NTA) H652200S169 WRENFORDSLEY CR5749/663 NT Land (s47B NTA) H652200S170 WRENFORDSLEY CR5749/663 NT Land (s47B NTA) H652200S174 WRENFORDSLEY CR5749/664 NT Land (s47B NTA) H652200S175 WRENFORDSLEY CR5749/664 NT Land (s47B NTA) H652200S176 WRENFORDSLEY CR5749/664 NT Land (s47B NTA) H652200S177 WRENFORDSLEY CR5749/664 NT Land (s47B NTA) H652200S245 WRENFORDSLEY CR5314/402 NT Land (s47B NTA)
Harbors and Navigation Act 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 MHWM-LAT FINLAYSON HNA Land MHWM-LAT HASLAM HNA Land Sea Waters OH(ELLISTON) HNA Land Sea Waters OH(STREAKY BAY) HNA Land D91266A20 RIPON CR6119/933 HNA Land MHWM-LAT RIPON HNA Land MHWM-LAT ROUNSEVELL HNA Land MHWM-LAT SCOTT HNA Land D33124A1 WRENFORDSLEY CR5754/936 HNA Land MHWM-LAT WRENFORDSLEY HNA Land
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
CT REF ASSET TYPE COUNT PARCEL ID HUNDRED CR5755/910 Pole Mounted Transformer 1 H651500S132 RIPON CR5472/286 Pole Mounted Transformer 1 H651500S374 RIPON CR5967/49 Pole Mounted Transformer 2 D60777A5 ROUNSEVELL CR5758/711 Pole Mounted Transformer 1 H651700S8 SCOTT CR5967/49 Pole Mounted Transformer 2 D60777A5 ROUNSEVELL
CT REF ASSET TYPE VOLTAGE PARCEL ID HUNDRED CR5755 972 Overhead High Voltage Conductor 19kV H610300S53 HASLAM CR6199 371 Underground Low Voltage Service Conductor 433V H640800S114 MINNIPA CR5746 486 Overhead High Voltage Conductor 66kV H651300S14 MOORKITABIE CR5898 133 Overhead Low Voltage Service Conductor 433V D30979A201 RIPON CR5898 133 Underground Low Voltage Service Conductor 433V D30979A201 RIPON CR5898 133 Overhead Low Voltage Conductor 433V D30979A201 RIPON CR5755 910 Underground High Voltage Conductor 11kV H651500S132 RIPON CR5755 910 Overhead High Voltage Conductor 11kV H651500S132 RIPON CR5755 910 Underground Low Voltage Service Conductor 433V H651500S132 RIPON CR5755 910 Overhead Low Voltage Conductor 433V H651500S132 RIPON CR5898 132 Underground Low Voltage Service Conductor 433V H651500S134 RIPON CR5898 132 Overhead Low Voltage Conductor 433V H651500S134 RIPON CR5898 133 Overhead Low Voltage Service Conductor 433V H651500S327 RIPON CR5898 133 Overhead Low Voltage Conductor 433V H651500S327 RIPON CR5758 109 Underground Low Voltage Service Conductor 433V H651500S360 RIPON CR5472 286 Overhead High Voltage Conductor 11kV H651500S374 RIPON CR5472 286 Overhead Low Voltage Service Conductor 240V H651500S374 RIPON CR5755 921 Underground High Voltage Conductor 11kV H651500S385 RIPON CR5755 921 Overhead High Voltage Conductor 11kV H651500S385 RIPON CR5967 49 Overhead High Voltage Conductor 19kV D60777A5 ROUNSEVELL CR5967 49 Overhead Low Voltage Service Conductor 240V D60777A5 ROUNSEVELL CR5758 711 Overhead High Voltage Conductor 19kV H651700S8 SCOTT CR5758 711 Overhead Low Voltage Service Conductor 240V H651700S8 SCOTT CR5755 930 Underground Low Voltage Service Conductor 480V H652200S243 WRENFORDSLEY CR5755 930 Overhead Low Voltage Conductor 480V H652200S243 WRENFORDSLEY CR5748 150 Underground Low Voltage Service Conductor 240V D28977A5 YANINEE CR5967/49 Overhead High Voltage Conductor 19kV D60777A5 ROUNSEVELL CR5967/49 Overhead Low Voltage Service Conductor 240V D60777A5 ROUNSEVELL
SCHEDULE OF PARTIES SAD 64 of 2022 WIRANGU NO 2 PART A NATIVE TITLE CLAIM Respondents Respondent: LINDSAY DENE BOTT Respondent: ROBERT JOHN BUTSON Respondent: ROBERT ASHLY CHAMBERS Respondent: WALTER PHILIP COOPER Respondent: STEWART JOHN BUTSON Respondent: CONSTRUCTION DIVERS PTY LTD Respondent: TONY D CUSTANCE Respondent: JAMES DOUGLAS BANKS Respondent: ROY JAMES BANKS Respondent: LAKKANA BOONMAJAROEN Respondent: JOHN DUDURA Respondent: DAVID LINDSAY APPLEBY Respondent: CHRISINDA PTY LTD Respondent: DISTRICT COUNCIL OF ELLISTON Respondent: MERVYN H MARWOOD 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: GRAHAM GORDON FILMER Respondent: SHAYNE MICHAEL FITZGERALD Respondent: TONY KINGDON Respondent: JOHN C HAAGMANS Respondent: WILLIAM JOHN HENDRY Respondent: LA CLOTURE FISHERIES PTY LTD 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: JUNE ROSEMARY GILL Respondent: KINNOCK PTY LTD Respondent: JOHN LEO FLAHERTY Respondent: JOHN FILIPPIDIS Respondent: DW HALL Respondent: NAVAJO PTY LTD Respondent: KENNETH JOHN SINCOCK Respondent: S & Z LUKIN PTY LTD Respondent: ANDREW CHARLES PUGLISI Respondent: MERVYN ALLAN PITTAWAY Respondent: ALLEN FRANCIS JAMES PITTAWAY Respondent: JOHN PALEOLOGOUDIAS Respondent: PHILIP PENALURICK Respondent: ALAN PAYNE Respondent: HAYDN JOHN O'BRIEN Respondent: BRIAN K MUNDY Respondent: SCOTT WEAVER Respondent: JEFFERY PAUL WAIT Respondent: BRENTON E TYRRELL Respondent: GRAHAM MARK TAPLEY Respondent: REGINALD GILBY SMART Respondent: LEON CHARLES WRIGHT Respondent: T GARNAUT NOMINEES PTY LTD Respondent: ANTONIO PETER YANCIC Respondent: ANNE ELIZABETH TAPLEY Respondent: BARTHOLOMEW BRETT BUTSON Respondent: WILDCATCH FISHERIES SA INC Respondent: WUDINNA DISTRICT COUNCIL Respondent: TELSTRA CORPORATION LIMITED Respondent: SA POWER NETWORKS (FORMERLY KNOWN AS ETSA UTILITIES) Respondent: SOUTH AUSTRALIAN APIARISTS ASSOCIATION
SAD 228 of 2019 WIRANGU NO 3 PART A NATIVE TITLE CLAIM Respondents Respondent: WUDINNA DISTRICT COUNCIL
SAD 84 of 2021 WIRANGU SEA CLAIM NO 2 PART A NATIVE TITLE CLAIM Respondents Respondent: DISTRICT COUNCIL OF STREAKY BAY Respondent: WILDCATCH FISHERIES OF SOUTH AUSTRALIA INC.
CHARLESWORTH J 1 This is the determination of three claims brought under the Native Title Act 1993 (Cth) on behalf of the Wirangu People: SAD64 of 2022 Wirangu No 2 Part A; SAD228 of 2019 Wirangu No 3 Part A; and SAD84 of 2021 Wirangu Sea Claim No 2 Part A. Each originating application seeks a determination of native title on behalf of the Wirangu People under s 13 of the Act. The parties have approached the Court for a determination to be made by consent under s 87A of the Act in relation to each of the claims (proposed determination). 2 For the reasons that follow, the Court is satisfied that a determination should be made substantially in the terms sought by the parties.
HISTORY OF THE CLAIMS 3 The Wirangu No 2 native title claim was lodged with the Native Title Tribunal on 28 August 1997. It was subsequently transferred to this Court in 1998 and allocated proceeding number SAD6019 of 1998. As part of the Court's digitisation process, it was recently renumbered SAD64 of 2022. It is one of the longest running Native Title claims in Australia. 4 On 16 March 2018, the Nauo People filed an application under s 13 of the Act over the south eastern portion of the Wirangu No 2 claim (SAD63 of 2018). Pursuant to s 67 of the Act, the Court subsequently made orders to determine that part of the Wirangu No 2 claim which was overlapped by the claim filed by the Nauo People in separate proceedings. The Court designated these two parts of the Wirangu No 2 claim as Parts A and B. It is Part A that is the subject of this determination. 5 The Part A area of the Wirangu No 2 claim covers an area of almost 5,334 square kilometres of land above the lowest astronomical tide along the western Eyre Peninsula of South Australia. The boundary of the claim area commences from a coastal point north west of Venus Bay, follows the coastline north to a point proximate with Acramans Creek then inland to the Eyre Highway. The Eyre Highway forms the eastern inland boundary of the claim area. 6 The application in Wirangu No 3 was filed on 25 October 2019. The area the subject of that claim covers a small number of individual parcels of land, totalling less than 34 square kilometres, located within the external boundaries of Wirangu No 2. These parcels were not the subject of claim in the Wirangu No 2 application. As several of the parcels subject to claim in Wirangu No 3 were also within the external boundary of the Nauo claim in proceeding SAD63 of 2018, the Court also made orders pursuant to s 67 of the Act to divide the Wirangu No 3 claim into Parts A and B. Part A of Wirangu No 3 claim is determined today. 7 A trial in the Wirangu No 2 Part A and No 3 Part A proceedings was listed to commence on 4 November 2019. That trial was to determine whether native title exists in relation to any land and waters of the Part A areas 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. Prior to the trial commencing, the State of South Australia and other respondents indicated a preparedness to resolve the proceedings by consent. The trial was vacated and the parties engaged in negotiations, including a comprehensive analysis of the tenure records for the Part A areas. 8 As part of the tenure analysis, on 2 April 2020 a separate question was referred to the Court concerning whether native title was extinguished over parcels of land dedicated to the District Council of Streaky Bay, on what is now the Streaky Bay Golf Course. The Court determined in Wilson v State of South Australia (No 4) [2020] FCA 1805 that native title had not been wholly extinguished over these parcels of land. An appeal from that judgment was dismissed by the Full Court on 18 October 2021: District Council of Streaky Bay v Wilson (2021) 287 FCR 538. 9 During the period when the Court was determining that separate question, a further claim for native title was filed over the Wirangu Part A areas. On 10 May 2021, Ms Meegan Sparrow and Mr Cameron Miller filed a claim expressed to be on behalf of the Mirning People which overlapped much of the Wirangu Part A claim area. That claim was dismissed on 4 November 2021: Sparrow v State of South Australia (Mirning Eastern Sea and Land Claim) [2021] FCA 1357. 10 Finally, as regards the history of these claims, on 18 May 2021 the applicant filed the application in the Wirangu Sea Claim No 2. That claim was amended on 1 March 2022, to reduce the area subject of the claim. The amended claim relates to seas ten metres from the lowest astronomical tide. It includes all of the internal islands and waters of Baird Bay, together with all of Jones Island, extending seaward ten metres from the lowest astronomical tide. The Wirangu Sea Claim No 2 also extends seaward fifty metres from the lowest astronomical tide from nine beaches described in the Court's orders. The area covered by the amended claim commences near the tip of Cape Bauer in the west of South Australia and runs contiguous with the coast, terminating on the eastern side of Tyringa Beach. At the time of filing, this claim overlapped that made in the Mirning Eastern Sea and Land Claim and also the Nauo claim in proceedings SAD63 of 2018. As with the claims in Wirangu No 2 and Wirangu No 3, the Court has made orders pursuant to s 67 of the Act to divide the Wirangu Sea Claim No 2 into Parts A and B. Part A is now the subject of this determination.
SECTION 87A 11 Section 87A(1) to (3) of the Act prescribes a procedure by which the parties to a native title proceeding may approach the Court for a determination by consent in relation to a part of the area covered by the originating application. The procedural requirements in this case have been fulfilled in that: (1) an agreement has been reached, within a prescribed time, on a proposed determination of native title in relation to an area; (2) all of the prescribed persons are parties to the agreement; and (3) the terms of the proposed determination are in writing and are signed by (or on behalf of) each of those parties. 12 Section 87A(4) provides that the Court may make an order in (or consistent with) the terms of the proposed determination without holding a hearing if the Court considers that an order in terms of the proposed determination is within the Court's power and that it would be appropriate to make the order.
The proposed determination is within power 13 An order in which the Court makes a determination of native title must set out the details specified in s 225 of the Act: Act, s 94A. Section 225 provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 14 The term "native title rights and interests" is defined in part in s 223(1) as follows: Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 15 As Gleeson CJ, Gummow and Hayne JJ explained in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, native title rights and interests in relation to land or waters are possessed under the traditional laws and customs observed by the peoples concerned. The normative system of laws and customs is a system that has had a continuous existence and vitality since sovereignty: at [47]. There is an inextricable link between a society and its laws and customs: at [49] - [56]. 16 The content of the proposed determination fulfils the requirement in s 225(a) in that it identifies at [11] the persons or group of persons holding the common or group rights comprising the native title. 17 The proposed determination satisfies the remaining requirements of s 225 as follows: (1) the nature and extent of the rights and interests are set out in [12] - [15], so satisfying s 225(b); (2) the nature and extent of other rights and interests in the determination area are set out in [16], so satisfying s 225(c); (3) the relationship between these rights and interests and those of the Native Title Holders is set out in [17], so satisfying s 225(d); and (4) the proposed determination states at [14] that the native title rights and interests do not confer possession, occupation, use and enjoyment of the land or waters on the Native Title Holders to the exclusion of all others, so satisfying s 225(e). 18 The fulfilment of those conditions means that the proposed determination is within the power of the Court having regard to ss 94A, 223 and 225 of the Act.
It is appropriate to make the determination 19 The Preamble to the Act states in part: 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. 20 Section 87A of the Act (together with s 87 which relates to the whole of a claim area) is to be understood as forming a part of the special procedure to which the Preamble refers. As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, the focus of s 87 of the Act (relevantly equivalent to s 87A) is on the making of an agreement by the parties, the provision reflecting the importance placed by the Act on mediation or conciliation as a primary means of resolving native title disputes. As his Honour observed, the Act is designed to encourage parties to resolve proceedings without the need for adversarial litigation. The power is to be exercised flexibly, having regard to that purpose (at [36]). North J continued (at [37]): In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. 21 See also Ward v State of Western Australia [2006] FCA 1848, North J (at [6] - [9]); Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992, Jagot J (at [13]); Nelson v Northern Territory (2010) 190 FCR 344, Reeves J (at [14]). 22 The Court's role is to satisfy itself that the State is acting in good faith and has taken steps to ensure that there is a credible and rational basis for the making of a determination by consent: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109, Emmett J (at [29] - [30]). As Reeves J said in Nelson: 12 It is appropriate to make some comments about the difficult balance a State party needs to strike between its role in protecting the community's interests, including the stringency of the process it follows in assessing the underlying evidence going to the existence of native title, and its role in the native title system as a whole, to ensure that it, like the Court and all other parties, takes a flexible approach that is aimed at facilitating negotiation and achieving agreement. In Lovett North J commented: … There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. 13 I respectfully agree with North J in these observations. In my view, it would be perverse to replace a trial before the Court with a trial conducted by a State party respondent and I do not consider that is what is intended by the provisions of s 87 of the Act. 23 The Court has before it a Joint Submission prepared by the applicant and the State in its capacity as the first respondent dated 23 November 2022. The Joint Submission identifies the bases for the terms of the orders agreed by the parties to resolve, by consent, the three Wirangu Part A native title determination applications. 24 Prior to the listing of Wirangu No 2 Part A and Wirangu No 3 Part A for trial, the applicant provided the State and active respondents with witness statements and detailed anthropological reports prepared by Dr Philip Clarke and Ms Lyn Coad. On 28 May 2019, in preparation for trial, the applicant filed an anthropological report of Dr Philip Clarke and Mr Jeffrey Stead and an affidavit of Ms Coad. The State commissioned its own assessment of the applicant's reports and filed a responsive expert anthropologist's report by Dr Kingsley Palmer, and a historical report by Mr Tom Gara. 25 In August 2019, Registrars of the Court convened a conference with the parties' experts and the resulting report recorded substantial agreement between the experts on key propositions discussed. On the basis of all of that material and the outcome of the conference of experts, the State and active respondents formed the view that a consent determination was justifiable and have provided their agreement to the proposed determination. 26 I am satisfied that the State has properly assessed the claim and, in all of the circumstances described in these reasons, I am satisfied that it is appropriate to make an order in the terms sought. 27 Since sovereignty, the impacts of colonisation have resulted in the extinguishment of native title in parts of the area forming the subject of the present applications. That loss is reflected in the determination itself. The Joint Submission indicates that the Wirangu People and the State have resolved issues in relation to compensation for that loss without the need for adversarial litigation. That resolution has been recorded in an agreement between them. The proposed determination referred to in these reasons will come into effect once that agreement is registered. 28 In those areas in which native title has not been extinguished, the determination is a reflection of the endurance of the Wirangu People and the traditional laws and customs that define them as a society. The effect of the determination is to recognise the continuation of that society and the rights and interests in land and waters that owe their existence to it. That normative system forms an important part of the history of this country as well as its present day social fabric. The Joint Submission highlights that the Wirangu claimants, their families and forebears have occupied and found work within the claim areas continuously since colonists arrived. 29 The Wirangu Aboriginal Corporation (ICN 9333) has been identified in the proposed determination as the prescribed body corporate to be appointed for the purposes of s 57(2) of the Act and to perform the functions set out in s 57(3) of the Act. I am satisfied that the proposed order in relation to the prescribed body corporate is appropriate. 30 The determination does not create any new rights or interests for the Wirangu People. Rather, it reflects the recognition under the common law of Australia that their rights and interests exist to the present day, as they did under traditional law long before the assertion of sovereignty. 31 The determination is now made in a form consistent with that sought by the parties. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.
Wilson, on behalf of the Wirangu People
State of South Australia
(2021) 287 FCR 538
(2001) 115 FCR 109
(2010) 190 FCR 344
(2002) 214 CLR 422
(2002) 117 FCR 6