Yankunytjatjara/Antakirinja Native Title Claim Group v The State of South Australia

whether the proposed consent determination should be made 8 The Court's power to make orders in terms of the proposed determination is contained in s 87 of the Act. A consent determination may be approved pursuant to s 87, without holding a hearing, if the Court is satisfied that the proposed terms are within power, and if it appears appropriate to do so. 9 Because the proposed order involves making a determination of native title, the order must also comply with s 94A of the Act. It requires the proposed determination to set out details of those matters which are mentioned in s 225. 10 Section 225 of the Act reads: '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.' 11 'Native title rights and interests' are defined in s 223(1) of the Act as: '…the communal, group or individual rights and interests of Aboriginal peoples…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…; and (b) the Aboriginal peoples…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.' 12 The applicants' evidence as to the criteria set out in s 223 is contained in an anthropological report of Dr Scott Cane, initially drafted in November 2005 and revised in February 2006. The report in draft form was the subject of a conference of anthropological experts convened by the Court. The final report, filed on 24 February 2006, addressed certain aspects of the claim in respect of which concerns were raised at that conference by the experts respectively retained by the State and certain pastoral respondents. 13 Dr Cane's report contains detailed genealogical information regarding the 19 families comprising the claim group, from the mid 19th century. It describes the traditional patterns of migration within the Western Desert Bloc, and the more recent history of contact between the pastoralists and the Aboriginal people: 'The nomadic range of Aboriginal people probably reduced as cattle stations became more established during the middle of last century, but that establishment probably served to unite and strengthen principles of law and custom through closer residential relationships. History suggests a relationship of reciprocal benefit developed between pastoralists and claimants and their ancestors. That relationship continues today, with claimants readily acknowledging their friendships with pastoralists and recognising their mutual rights in country… Aboriginal people thus seem to have adapted their customary behaviour to accommodate and benefit from the changed social and residential environment of the pastoral era without loss of cultural integrity.' 14 None of the claimants currently live on the claim area itself, residing primarily in neighbouring Oodnadatta and Indulkana. 15 Dr Cane described the members of the claim group as a society which continues to observe the fundamentals of traditional life, as adapted to meet changing circumstances and challenges. He described various customs which are still alive among the claimant group, including language; age and gender divides regarding decision-making; social power and access to religious knowledge; beliefs about the presence and creations of tjukurpa beings; conduct of ceremonies; regulation of relationships by kinship structure; observance of protocols governing access to land; hunting and gathering; and living in traditional shelters. 16 The recognition of traditional rights in country by the claim group is summarised by Dr Cane in the following terms: 'Claimants express different rights in country and rights in different parts of country according to differing customary mechanism of association: through birth, descent, long-term association, and knowledge of Tjukurrpa…People express rights with different degrees of authority in differing social and geographic contexts. The strength of that authority is measured in socio-political terms - through age and gender, family connection, ritual and communal status…' 17 I have had the benefit, in considering the orders sought by the parties, of a written submission of the State on behalf of the principal parties, addressing (inter alia) the requirements of ss 223 and 225 of the Act and the appropriateness of making the orders pursuant to s 87. It is a most helpful submission. It has enabled me to only briefly state the reasons for my conclusions. 18 I agree with the principal parties that Dr Cane's report supports the recognition of native title rights and interests possessed by the claimants, as defined by s 223 and explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria(2002) 214 CLR 422. 19 I accept that the parties likely to be affected by the proposed determination have had sufficient access to independent legal representation; and that the State, in providing its consent, has given appropriate consideration to the evidence and the interests of the community generally: see Munn v Queensland (2001) 115 FCR 109 at [29]. 20 I have also considered the terms of the proposed determination. In my view, it satisfies the requirements of s 225 of the Act. However, it is necessary to make some observations about the description of the 'other interests' in the determination area, in the proposed determination. 21 Aside from the Marla Township area, the proposed determination further provides that native title does not exist in parts of the claim area comprising freehold grants, the Oodnadatta Satellite Ground Station, certain land dedicated for 'Digital Radio Concentrator purposes' and public roads. Clause 11 of the proposed determination provides that native title does not exist in minerals or petroleum. 22 The principal parties agree that the exercise of rights associated with the pastoral leases covering the determination area has effected partial extinguishment of native title. They agree that the claimants do not have rights of exclusive possession over the determination area, and that the rights of the pastoralists prevail to the extent of any inconsistency: Western Australia v Ward (2002) 213 CLR 1. Clause 9 of the proposed determination provides for extinguishment of native title where improvements to the land have been erected pursuant to the relevant pastoral leases. 23 The parties were unable to agree as to whether future pastoral improvements erected after the date of the consent determination will extinguish native title in those areas: see De Rose v South Australia (No 2) (2005) 145 FCR 290 at [149]-[158]. They have sought to resolve the issue by providing, in proposed clause 10, that 'the possibility of future extinguishment, according to law, of native title' by the construction of further pastoral improvements is not precluded by the determination. 24 I have also considered the terms of Order 10 of the proposed consent determination. It leaves open for the future the possibility of further acts of the kind referred to in Order 9, in limited circumstances. It is realistic of the parties to have recognised the possibility of such future conduct, whatever its legal effect. It is therefore proper that the parties should also have addressed the legal effect or the legal consequences of such conduct, if it eventuates. It is far better that they should do, than leave the issue unresolved. Order 10 as proposed then indicates what the parties accept will be the legal consequences of such conduct if it occurs. As that order reflects the common understanding of past conduct (as described in Order 9), as applied to that possible future conduct, I think it provides sufficient certainty to the parties. There is therefore no reason why that proposed order should inhibit the making of the consent determination. 25 Finally, I indicate my view that, despite there being an unresolved part of the claim area, namely the Marla Township, the Court is not precluded from making the proposed consent determination. Section 87(1)(a)(ii) and (3) expressly contemplates resolution by agreement of any part of a proceeding, and that the remaining part of the proceeding may be dealt with separately and later. That is also consistent with the power of the Court to direct under s 67 that overlapping claims may be ordered to be dealt with together, and consequently if such an order is made that part of a claim area which is not overlapping and which has not been dealt with by an order under s 67 to be dealt with separately. 26 I have also taken into account my awareness of the process by which the agreement of the parties has been reached. It has been a thorough process, assisted by legal representation and by expert anthropological advice. The Court played a not insignificant role, in its case management of the proceedings, by adopting its commonly used procedure in many matters involving expert evidence. It secured the respective anthropologists assisting the parties to confer, to identify the starting points for their views, to explore the extent to which they were in agreement, and to confer about the matters in respect of which they were in disagreement. Senior counsel for the State, at a directions hearing, acknowledged that that process had facilitated the steps towards the parties' ultimate agreement. I have not overlooked also the extensive private negotiations which have obviously taken place between the parties, together with the processes in which the National Native Title Tribunal played a significant role. There is every reason to accept the proposed consent determination as a fully informed and appropriate one.

Conclusion 27 I am satisfied that it is within the power of the Court, and appropriate in the circumstances, to give effect to the proposed determination without a full hearing of the native title application. I therefore make the orders and determination attached the Appendix to these reasons. I otherwise adjourn the application to a date to be fixed. That concerns the Marla Township area, about which the parties are still negotiating. The matter will be called on for further directions in relation to the Marla Township of the claim area in due course.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Aboriginal M Steele Legal Rights Movement:

Solicitor for the Aboriginal T Wooley, ALRM Legal Rights Movement:

Counsel for the State of M Atkinson, Attorney-General for South Australia with CJ Kourakis QC, Solicitor-General for South Australia and S Strelan South Australia:

Solicitor for the State of Crown Solicitor's Office South Australia:

Counsel for the Group 4 C Goodall Pastoralists:

Solicitor for the Group Rosemary H Craddock 4 Pastoralists:

Counsel for the Group 5 D Lillecrapp appeared in person Pastoralists:

Solicitor for the Group Kelly & Co 5 Pastoralists:

Counsel for the Marla & R Craddock Districts Progress Association:

Solicitor for the Marla & Rosemary H Craddock Districts Progress Association:

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 6022 OF 1998

BETWEEN: JEAN WOOD, SADIE SINGER, LALLIE LENNON AND JOHNNY CULLINAN ON BEHALF OF THE YANKUNYTJATJARA/ANTAKIRINJA NATIVE TITLE CLAIM GROUP

MARLA AND DISTRICTS PROGRESS ASSOCIATION INCORPORATED

SOUTH AUSTRALIAN APIARISTS ASSOCIATION INCORPORATED

THE COURT NOTES THAT: A The Applicant first lodged Native Title Determination Application No. SAD 6022 of 1998 (the Application) with the National Native Title Tribunal on 21 November 1997 in relation to lands and waters in northern South Australia which are now the subject of a proposed determination of native title. The Application was referred to the Federal Court of Australia on 30 September 1998. B The Applicant, the State of South Australia and the other respondents have reached an agreement as to the terms of a determination of native title to be made in relation to the land and waters covered by the Application. They have filed with this Court pursuant to section 87(1) of the Native Title Act 1993 (Cth) (the Native Title Act) an agreement in writing to seek the making of consent orders for a determination. C The parties acknowledge that the effect of the making of the determination will be that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the native title holders for the Determination Area as defined by Order 3 of this Order. D The parties have requested that the Court determine the proceedings without a trial. 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 and by the consent of the parties: THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT:

1. In this determination, including its schedules, unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Part 15 of the Native Title Act.
2. In this determination including its schedules, in the event of an inconsistency between a description of an area in a schedule and the depiction of that area on the map in Schedule 2, the written description shall prevail.
3. Subject to Orders 8, 9, 10, 11 and 12 below, native title exists in the areas described in Schedule 1 ("the Determination Area").
4. Under the relevant traditional laws and customs of the Western Desert Bloc, the native title holders comprise those Aboriginal people who have a spiritual connection to the Determination Area and the Tjukurpa associated with it because:

(a) the Determination Area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or (b) he or she has had a long term association with the Determination Area such that he or she has traditional geographical and religious knowledge of that country; or (c) he or she has an affiliation to the Determination Area through a parent or grandparent with a connection to the Determination Area as specified in sub-paragraphs (a) or (b) above; and are recognised under the relevant Western Desert traditional laws and customs by other members of the native title claim group as having rights and interests in the Determination Area. 5. The nature and extent of the native title rights and interests in relation to the Determination Area are non-exclusive rights to use and enjoy in accordance with the native title holders' traditional laws and customs the land and waters of the Determination Area, being: (a) the right to access and move about the Determination Area; (b) the right to hunt and fish on the land and waters on the Determination Area; (c) the right to gather and use the natural resources of the Determination Area such as food, medicinal plants, wild tobacco, timber, stone and resin; (d) the right to use the natural water resources on the Determination Area; (e) the right to live, to camp and to erect shelters on the Determination Area; (f) the right to cook on the Determination Area and to light fires for all purposes other than the clearance of vegetation; (g) the right to engage and participate in cultural activities on the Determination Area including those relating to births and deaths; (h) the right to conduct ceremonies and hold meetings on the Determination Area; (i) the right to teach on the Determination Area the physical and spiritual attributes of locations and sites within the Determination Area; (j) the right to maintain and protect sites and places of significance to native title holders under their traditional laws and customs on the Determination Area; (k) the right to be accompanied on to the Determination Area by those people who, though not native title holders, are: (i) spouses of native title holders; or (ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area; or (iii) people who have rights in relation to the Determination Area according to the traditional laws and customs acknowledged by the native title holders; or (iv) people required by native title holders to assist in, observe, or record traditional activities on the Determination Area; and (l) the right to make decisions about the use and enjoyment of the Determination Area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the native title holders. 6. The native title rights and interests arefor personal, domestic and non-commercial communal use. 7. The native title rights and interests do not confer possession, occupation, use and enjoyment of those lands and waters on the native title holders to the exclusion of others. 8. Native Title does not exist in the areas described in Schedule 3 and in the areas and resources described in Orders 9, 11 and 12 herein. 9. Native title rights and interests do not exist in respect of those parts of the Determination Area being any house, shed or other building or airstrip or any dam or other stock watering point constructed pursuant to the pastoral leases referred to in Order 14(a) below. These areas comprise the land on which the improvements of the kind referred to herein have been constructed prior to the date hereof and include any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements referred to. 10. For the avoidance of doubt, Order 9 does not preclude the possibility of further extinguishment, according to law, of native title over other limited parts of the Determination Area by reason of the construction of new pastoral improvements of the kind referred to in Order 9 after the date of this determination. 11. Native title rights do not exist in minerals as defined in section 6 of the Mining Act 1971 (SA) or petroleum as defined in section 4 of the Petroleum Act 2000 (SA). 12. Native title rights do not exist in the areas covered by Public Works (including the land defined in section 251D of the Native Title Act) which were: (a) constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date; or (b) constructed, established or situated after 23 December 1996, where section 24JA of the Native Title Act applies. 13. Native title rights and interests are subject to and exercisable in accordance with: (a) the traditional laws and customs of the native title holders; (b) the valid laws of the State and Commonwealth, including the common law. 14. The nature and extent of other interests to the Determination Area are: (a) the interests within the Determination Area created by: (i) Crown Lease Pastoral No 2408; (ii) Crown Lease Pastoral No 2418; (iii) Crown Lease Pastoral No 2476; (iv) Crown Lease Pastoral No 2533; (v) Crown Lease Pastoral No 2446; (vi) Crown Lease Pastoral No 2430; (vii) Crown Lease Pastoral No 2532; and (viii) Crown Lease Pastoral No 2532a; (b) the interests of the Crown in right of the State of South Australia; (c) the interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power; (d) rights and interests held by reason of the force or operation of the laws of the State or Commonwealth; (e) 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; (f) the rights and interests of Telstra Corporation Ltd: (i) as the owner or operator of telecommunications facilities within the Determination Area, including customer radio terminals and overhead and underground cabling; (ii) as the holder of a carrier licence under the Telecommunications Act 1997 (Cth); (iii) 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); and (iv) for its employees, agents or contractors to enter the Determination Area to access its facilities in and in the vicinity of the Determination Area in the performance of their duties; (g) the rights and interests of Airservices Australia: (i) rights and interests created pursuant to the Air Navigation Act 1920 (Cth), the Civil Aviation Act 1988 (Cth) and the Airservices Act 1995 (Cth); and (ii) rights of access by employees, agents or contractors of Airservices Australia to the Oodnadatta Satellite Ground Station Site in the performance of their duties; and (h) the rights and interests under the Todmorden Pastoral ILUA dated 14 April 2004 and registered on 29 March 2005 (SI 2002/002) between Douglas Lillecrapp, Gordon Keith Lillecrapp, Mary Lizbeth Lillecrapp, the State of South Australia and representatives of the native title holders. 15. Subject to Order 6, the relationship between the native title rights and interests in the Determination Area that are described in Order 5 and the other rights and interests that are referred to in Order 14 ("the other rights and interests") is that: (a) the other rights and interests co-exist with the native title rights and interests; (b) the existence of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by or under the other rights and interests which prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them. AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS: 16. The native title is not to be held in trust. 17. An Aboriginal corporation, the name of which must be provided to the Court within 6 months of the date of this Order, is to: (a) be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth); and (b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate. 18. Liberty to any party to apply on 14 days notice to a single judge of the Court as to the identification of the Aboriginal corporation referred to in the preceding Order. 19. The Application to the extent to which it relates to the area of land and waters excluded from the Determination Area as described in Schedule 1 of this Order is adjourned to a directions hearing on 14 September 2006 at 9.30 am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SCHEDULE 1 - Location of and areas comprising the Determination Area The Determination Area is located wholly within and comprises all land and waters bounded by the following line: Commencing at the northernmost north-western corner of Parcel B1161 on Plan H831200 (being Lambina Pastoral Lease) and extending easterly, southerly, again easterly and again southerly along northern and eastern boundaries of that parcel to the northernmost north-western corner of Parcel A2005 on Plan D30223 (being Todmorden Pastoral Lease); then easterly, southerly, again easterly, again southerly, westerly and again southerly along northern and eastern boundaries of that parcel to the north-eastern corner of Parcel A2006 on Plan D30223 (being part Allandale Pastoral Lease); then southerly and westerly along eastern and southern boundaries of that parcel to the north-eastern corner of Parcel B1215 on Plan H831300 (being Coorikiana Pastoral Lease); then southerly along the eastern boundary of that parcel to Latitude 27.839209° South (being the prolongation easterly of a southern boundary of Parcel Q3 on Plan D45289); then westerly to the easternmost south-eastern corner of Parcel Q3 on Plan D45289; then westerly along the said southern boundary to Longitude 134.061109° East; then westerly to a corner of Parcel Q1 on Plan D45289 (being part Wintinna Pastoral Lease) at Longitude 133.675301° East, Latitude 27.841662° South; then northerly along a western boundary of that parcel to a south-eastern corner of Parcel Q2043 on Plan D43520 (being part Welbourn Hill Pastoral Lease); then westerly, northerly, easterly and again northerly along western boundaries of that parcel to a corner of Parcel A51 on Plan F217277; then northerly along the western boundary of that parcel to a corner of Parcel Q2044 on Plan D43520 (also being part Welbourn Hill Pastoral Lease); then northerly and easterly along the western and northern boundaries of that parcel to a corner at Longitude 133.517438° East; then easterly to the north-western corner of Parcel Q2048 on Parcel D43520 (also being part Welbourn Hill Pastoral Lease); then easterly along the northern boundary of that parcel to the south-western corner of again Parcel B1161 on Plan H831200 (Lambina Pastoral Lease); then generally north-easterly along western and northern boundaries of that parcel back to the commencement point. With the exclusion of the township of Marla as defined in Government Gazette dated 21 May 1981 at page 1498 and the land dedicated in Government Gazette dated 18 July 1996 at page 131 for Golf course and Race course Purposes (Allotment 2046 on Deposited Plan No. 43520, Out of Hundreds (Wintinna)) extracts of which are reproduced below: The South Australian Government Gazette - 21 May 1981 The portion of the State of South Australia, out of hundreds (Wintinna), bounded as follows: Commencing at a point situate in block 1184, out of hundreds (Wintinna), being at latitude 27°18'19.7", longitude 133°36'50.3"; thence north-westerly at a bearing of 323°40'16" for 825.82 metres; north-easterly at right angles for 1 700.00 metres; south-easterly at right angles for 1 700.00 metres; south-westerly at right angles for 1 729.85 metres; thence north-westerly at a northern angle of 88°02'40" to the point of commencement.

The South Australian Government Gazette - 18 July 1996 Allotment 2046 of DP 43520, Out of Hundreds (Wintinna), exclusive of all necessary roads, being the whole of the land compromised in Crown Record Volume 5337, Folio 563.

Reference datum Geographical coordinates have been provided by NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time. Data Reference and source Cadastral data sourced from the South Australian Department for Environment and Heritage (May 2006) Prepared by Geospatial Services, National Native Title Tribunal, 7 June 2006.

SCHEDULE 2 - Map of the Determination Area SCHEDULE 3 - Areas within the Determination Area where native title does not exist

1. Areas of freehold grants 1.1 The land comprised in the following Certificates of Title: a) Volume 4397 Folios 121, 122 and 123; and b) Volume 5817 Folio 682
2. The area of the Oodnadatta Satellite Ground Station Site operated by Airservices Australia, being an area of approximately 625m2, the Station Mark of which is located at Latitude 27o30'30.9"S Longitude 135o26'39.1"E.
3. Dedicated Land 3.1 Section 1517 Out of Hundreds Wintinnadedicated for Digital Radio Concentrator purposes.
4. Public Roads 4.1 the Stuart Highway, being the land depicted in Survey for road purposes on Survey Diagram Book - Out of Hundreds (North) pages 922 to 927 and 978 to 980 (inclusive); 4.2 all other public roads.