FEDERAL COURT OF AUSTRALIA

Eringa, Eringa No 2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v The State of South Australia [2008] FCA 1370

NATIVE TITLE – determination of native title by consent

Native Title Act 1993 (Cth)

EDIE KING, RUTH MCKENZIE, EMILY CHURCHILL, HOWARD DOOLAN, DEAN AH CHEE, MARILYN HULL ON BEHALF OF THE ERINGA NATIVE TITLE CLAIM GROUP and LINDA CROMBIE, BRENDA SHIELDS, SHARON LUCAS, HAYDYN BROMLEY, ARTHUR AH CHEE ON BEHALF OF THE WANGKANGURRU/ YARLUYANDI NATIVE TITLE CLAIM GROUP v THE STATE OF SOUTH AUSTRALIA & ANOR 

SAD 6010 of 1998

LINDA CROMBIE, BRENDA SHIELDS, SHARON LUCAS, HAYDYN BROMLEY. ARTHUR AH CHEE ON BEHALF OF THE WANGKANGURRU/ YARLUYANDI NATIVE TITLE CLAIM GROUP and EDIE KING, RUTH MCKENZIE, EMILY CHURCHILL, HOWARD DOOLAN, DEAN AH CHEE, MARILYN HULL ON BEHALF OF THE ERINGA NO. 2 NATIVE TITLE CLAIM GROUP v THE STATE OF SOUTH AUSTRALIA & ANOR

SAD 6016 OF 1998

DAVID DOOLAN, VALERIE NAYLON FUSCHTEI, CHRISTINE LENNON, ARTHUR AH CHEE ON BEHALF OF THE IRRWANYERE MT DARE NATIVE TITLE CLAIM GROUP and LINDA CROMBIE, BRENDA SHIELDS, SHARON LUCAS, HAYDYN BROMLEY, ARTHUR AH CHEE ON BEHALF OF THE WANGKANGURRU/ YARLUYANDI NATIVE TITLE CLAIM GROUP and EDIE KING, RUTH MCKENZIE, EMILY CHURCHILL, HOWARD DOOLAN, DEAN AH CHEE, MARILYN HULL ON BEHALF OF THE ERINGA NATIVE TITLE CLAIM GROUP v THE STATE OF SOUTH AUSTRALIA & ANOR

SAD 66 OF 2005

LANDER J

11 SEPTEMBER 2008

DALHOUSIE SPRINGS

THE COURT ORDERS THAT:

1.                  To the extent that the Eringa Native Title Claim (SAD 6010 of 1998) covers the area of the Witjira National Park but excluding the area of the Irrwanyere Mt Dare Claim (SAD 66 of 2005), it is to be determined as a separate proceeding to be known as the “Eringa Part A Proceeding”.

2.                  The Eringa Part A Proceeding shall continue in proceeding number SAD 6010 of 1998.

3.                  Pursuant to section 67 of the Native Title Act 1993 (Cth), to the extent that the Wangkangurru/Yarluyandi Native Title Claim (SAD 6016 of 1998) overlaps the Eringa Part A Proceeding, the Wangkangurru/Yarluyandi Native Title Claim be heard at the same time as the Eringa Part A Proceeding and the Applicant to the Wangkangurru/Yarluyandi Native Title Claim Native Claim be joined as the Second Applicant to the Eringa Part A proceeding.

4.                  The area of the Eringa Native Title Claim (SAD 6010 of 1998) that does not cover the area of the Witjira National Park is to continue as a separate proceeding to be known as the “Eringa Part B Proceeding”.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BY CONSENT THE COURT MAKES THE FOLLOWING DETERMINATION OF NATIVE TITLE:

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,

(a)        “the Park” means the whole of the area reserved as a National Park under the provisions of the National Parks and Wildlife Act 1972 (SA) (“NPWA”)and proclaimed as the Witjira National Park in Government Gazette dated 21 November 1985, being Section 1495 Out of Hundreds Dalhousie.

(b)        “the Determination Area” means that part of the Park which is covered by the Eringa Part A Proceeding (SAD 6010 of 1998).

(c)        “the Vesting” means the vesting of the Park in the Crown pursuant to section 35 of the NPWA by reason of the reservation and proclamation referred to in subparagraph (a) above.

(d)        “the ILUA and CMA” means the Indigenous Land Use Agreement and Co-Management Agreement relating to the Park and executed by the parties on 13 August 2007.

3.                  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 1, the written description shall prevail.

Existence of Native Title

4.                  Native title exists in the Determination Area.

5.                  Section 47A of the Native Title Act applies to the whole of the Determination Area other than the two small areas that have been “fenced out” to the adjoining pastoral leases, as referred to in sub-paragraph 12(f).  Subject to paragraph 6 all extinguishment of native title rights and interests over the Determination Area prior to 21 August 1997 is to be disregarded.

6.                  Native title does not exist in relation to the areas and resources described in paragraphs 14 and 15 herein.

The native title holders

7.                  The Native Title Holders are those Lower Southern Arrernte and Wangkangurru persons who have a traditional connection to the Determination Area and are described in Schedule 2.

8.                  In addition, the individuals named in Schedule 3 are acknowledged as entitled to exercise native title rights and interests in the Determination Area under the traditional laws and customs of the Native Title Holders.

Native title rights and interests

9.                  The nature and extent of the native title rights and interests held by all Native Title Holders in relation to the Determination Area are rights to use, occupy 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 live, to camp and to erect shelters on the Determination Area;

(c)        The right to hunt on the Determination Area;

(d)        The right to gather and use the natural resources of the Determination Area such as food, plants, timber, ochre and feathers;

(e)        The right to cook and to light fires for cooking and camping purposes on the Determination Area;

(f)         The right to use the natural water resources of the Determination Area;

(g)        The right to distribute, trade or exchange the natural resources of the Determination Area;

(h)        The right to conduct ceremonies and hold meetings on the Determination Area;

(i)         The right to engage and participate in cultural activities on the Determination Area including those relating to births and deaths;

(j)         The right to teach on the Determination Area the physical and spiritual attributes of locations and sites within the Determination Area;

(k)        The right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the Determination Area;

(l)         The right to speak for and make decisions in relation to the Determination Area 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;

(m)       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.

10.              The native title rights and interests arefor personal, domestic or communal use.

11.              The native title rights and interests arenon-exclusive (with the exception of those set out in subparagraph 9(l)) and 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.

Nature and extent of other interests

12.              The nature and extent of other interests in relation to the Determination Area are:

(a)        the rights exercisable under the ILUA and CMA in accordance with their terms;

(b)        the interests created under the IAC Lease;

(c)        the interests of the Crown in right of the State of South Australia;

(d)        the rights of the public to use and enjoy the Determination Area in accordance with the provisions of the NPWAand associated regulations (subject to the IAC Lease);

(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 (in accordance with the NPWA or any other Act);

(f)         for those parts of the Park fenced into Macumba Station and Hamilton Station and habitually used by the pastoral lessees of those Stations, such rights and interests as may be held and exercisable by them in those parts of the Park by reason of such usage and the pastoral leases for those stations being:

(i)         Pastoral Lease No. 2528, Crown Lease Volume 1607 folio 55; and

(ii)        Pastoral Lease No. 2460, Crown Lease Volume 1607 folio 84,

subject to rights of access of Aboriginal people equivalent to those provided by section 47 of the Pastoral Land Management and Conservation Act 1989.

(g)        the rights and interests of Telstra Corporation Limited:

(i)         as the owner or operator of telecommunications facilities within the Determination Area, including customer radio terminals and cabling;

(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); and

(iii)        in respect of its Dalhousie Springs Telecommunications Site, being an area of 10 metres by 10 metres (latitude 26°25’37” and longitude 135°30’06”; 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.

13.              The relationship between the native title rights and interests in the Determination Area that are described in paragraph 9 and the other rights and interests that are referred to in paragraph 12 (“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;

(c)        the native title rights and interests continue to exist but have no effect in relation to the Vesting.

14.              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).

15.              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 constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date.

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 six months of the date of this Order, is to:

(a)        be the prescribed body corporate for the purposes of s57(2) of the Native Title Act; and

(b)        perform the functions mentioned in s 57(3) of the Native Title Act after becoming a registered native title body corporate.

18.              The parties have liberty to apply on 14 days notice to a single judge of the Court for the following purposes:

(a)        as to the identification of the Aboriginal corporation referred to in the preceding paragraph;

(b)        to establish the precise location and boundaries of the public works and adjacent land and waters referred to in paragraph 15 of this determination.

SCHEDULE 1 – Map of the Determination Area

SCHEDULE 2 - Native Title Holders

·               All of the descendants of Wiljali

·               All of the descendants of Yungili and Yungili's brother and their wives, being the sisters Maggie and Bugagaguna

·               All of the descendants of Opossum (including Billy Ngaltagintata Reese)

·               All of the descendants of the sibling pair Nguramariu (male) and Pungatjuntu (female)

·               All of the descendants of the siblings Iljili - Banggana and Iljili - Birbana

·               All of the descendants of the siblings Ruby and Elsie Girranungada Nancurda

·               All of the descendants of Willy Doolan

·               All of the descendants of Lalayi

·               All of the descendants of Jimmy Arrerte

·               All of the descendants of Lilly Summerfield (Summerville)

·               Marilyn Rose Hull Ah Chee and all of her descendants

·               Ian Hodgson and all of his descendants

·               All of the descendants of Angeline (including Ruth McKenzie, Tom Cramp and Jenny Stewart)

·               All of the descendants of Mary Cleanskin (Nyukapinya) (including Billy Bailes and June Bailes)

·               All of the descendants of Anatjari and Wiltiwa (the parents of Lilly, the Arrernte mother of Edie King)

·               All of the descendants of Harry Taylor

SCHEDULE 3 - Individuals acknowledged as entitled to exercise native title rights and interests under the traditional laws and customs of the Native Title Holders:

·               Emily Churchill

·               Hughie Tjami

·               Keith Minungka

THE COURT ORDERS THAT:

1.                  To the extent that the Wangkangurru/Yarluyandi Native Title Claim (SAD 6016 of 1998) overlaps both the Witjira National Park and the Eringa #2 Native Title Claim (SAD 6002 of 1999), it is to be heard and determined as a separate proceeding to be known as the “Wangkangurru/Yarluyandi Part A Proceeding”.

2.                  The Wangkangurru/Yarluyandi Part A Proceeding shall continue in proceeding number SAD 6016 of 1998.

3.                  Pursuant to section 67 of the Native Title Act 1993 (Cth), to the extent that the Eringa #2 Native Title Claim (SAD 6002 of 1999) overlaps the Wangkangurru/Yarluyandi Part A Proceeding, it is to be heard at the same time as the Wangkangurru/Yarluyandi Part A Proceeding and the Applicant to the Eringa #2 Native Title Claim (SAD 6002 of 1999) be joined as the Second Applicant to the Wangkangurru/Yarluyandi Part A Proceeding.

4.                  That part of the Wangkangurru/Yarluyandi Native Title Claim (SAD 6016 of 1998) that does not cover the area of the Witjira National Park is to continue as a separate proceeding to be known as the “Wangkangurru/Yarluyandi Part B Proceeding” within proceeding number SAD 6016 of 1998.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BY CONSENT THE COURT MAKES THE FOLLOWING DETERMINATION OF NATIVE TITLE:

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,

(a)        “the Park” means the whole of the area reserved as a National Park under the provisions of the National Parks and Wildlife Act 1972 (SA) (“NPWA”) and proclaimed as the Witjira National Park in Government Gazette dated 21 November 1985, being Section 1495 Out of Hundreds Dalhousie.

(b)        “the Determination Area” means that part of the Park covered by the Wangkangurru/Yarluyandi Part A Proceeding (SAD 6016 of 1998).

(c)        “the Vesting” means the vesting of the Park in the Crown pursuant to section 35 of the NPWAby reason of the reservation and proclamation referred to in subparagraph (a) above.

(d)        “the ILUA and CMA” means the Indigenous Land Use Agreement and Co-Management Agreement relating to the Park and executed by the parties on 13 August 2007.

3.                  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 1, the written description shall prevail.

Existence of Native Title

4.                  Native title exists in the Determination Area.

5.                  Section 47A of the Native Title Act applies to the whole of the Determination Area other than a small part of the area that has been “fenced out” to the adjoining pastoral lease, as referred to in sub-paragraph 12(f).  Subject to paragraph 6 all extinguishment of native title rights and interests over the Determination Area prior to 26 May 1999 is to be disregarded.

6.                  Native title does not exist in relation to the areas and resources described in paragraphs 14 and 15 herein.

The native title holders

7.                  The Native Title Holders are those Lower Southern Arrernte and Wangkangurru persons who have a traditional connection to the Determination Area and are described in Schedule 2.

8.                  In addition, the individuals named in Schedule 3 are acknowledged as entitled to exercise native title rights and interests in the Determination Area under the traditional laws and customs of the Native Title Holders.

Native title rights and interests

9.                  The nature and extent of the native title rights and interests held by all native title holders in relation to the Determination Area are rights to use, occupy 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 live, to camp and to erect shelters on the Determination Area;

(c)        The right to hunt on the Determination Area;

(d)        The right to gather and use the natural resources of the Determination Area such as food, plants, timber, ochre and feathers;

(e)        The right to cook and to light fires for cooking and camping purposes on the Determination Area;

(f)         The right to use the natural water resources of the Determination Area;

(g)        The right to distribute, trade or exchange the natural resources of the Determination Area;

(h)        The right to conduct ceremonies and hold meetings on the Determination Area;

(i)         The right to engage and participate in cultural activities on the Determination Area including those relating to births and deaths;

(j)         The right to teach on the Determination Area the physical and spiritual attributes of locations and sites within the Determination Area;

(k)        The right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the Determination Area;

(l)         The right to speak for and make decisions in relation to the Determination Area 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;

(m)       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.

10.              The native title rights and interests arefor personal, domestic or communal use.

11.              The native title rights and interests arenon-exclusive (with the exception of those set out in subparagraph 9(l)) and 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.

Nature and extent of other interests

12.              The nature and extent of other interests in relation to the Determination Area are:

(a)        the rights exercisable under the ILUA and CMA in accordance with their terms;

(b)        the interests created under the IAC Lease;

(c)        the interests of the Crown in right of the State of South Australia;

(d)        the rights of the public to use and enjoy the Determination Area in accordance with the provisions of the NPWA and associated regulations (subject to the IAC Lease) and in accordance with the provisions of the Mount Dare lease;

(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 (in accordance with the NPWAor any other Act).

(f)         for that part of the Park fenced into Macumba Station and habitually used by the pastoral lessees of that Station, such rights and interests as may be held and exercisable by them in those parts of the Park by reason of such usage and the pastoral lease for that station being:

(i)         Pastoral Lease No. 2528, Crown Lease Volume 1607 folio 55,

subject to rights of access of Aboriginal people equivalent to those provided by section 47 of the Pastoral Land Management and Conservation Act 1989.

13.              The relationship between the native title rights and interests in the Determination Area that are described in paragraph 9 and the other rights and interests that are referred to in paragraph 12 (“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;

(c)        the native title rights and interests continue to exist but have no effect in relation to the Vesting.

14.              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).

15.              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 constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date.

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 six months of the date of this Order, is to:

(a)        be the prescribed body corporate for the purposes of s57(2) of the Native Title Act; and

(b)        perform the functions mentioned in s 57(3) of the Native Title Act after becoming a registered native title body corporate.

18.              The parties have liberty to apply on 14 days notice to a single judge of the Court for the following purposes:

(a)        as to the identification of the Aboriginal corporation referred to in the preceding paragraph;

(b)        to establish the precise location and boundaries of the public works and adjacent land and waters referred to in paragraph 15 of this determination.

SCHEDULE 1 - Map of the Determination Area

SCHEDULE 2 - Native Title Holders

·               All of the descendants of Wiljali

·               All of the descendants of Yungili and Yungili's brother and their wives, being the sisters Maggie and Bugagaguna

·               All of the descendants of Opossum (including Billy Ngaltagintata Reese)

·               All of the descendants of the sibling pair Nguramariu (male) and Pungatjuntu (female)

·               All of the descendants of the siblings Iljili - Banggana and Iljili - Birbana

·               All of the descendants of the siblings Ruby and Elsie Girranungada Nancurda

·               All of the descendants of Willy Doolan

·               All of the descendants of Lalayi

·               All of the descendants of Jimmy Arrerte

·               All of the descendants of Lilly Summerfield (Summerville)

·               Marilyn Rose Hull Ah Chee and all of her descendants

·               Ian Hodgson and all of his descendants

·               All of the descendants of Angeline (including Ruth McKenzie, Tom Cramp and Jenny Stewart)

·               All of the descendants of Mary Cleanskin (Nyukapinya) (including Billy Bailes and June Bailes)

·               All of the descendants of Anatjari and  Wiltiwa (the parents of Lilly, the Arrernte mother of Edie King)

·               All of the descendants of Harry Taylor

SCHEDULE 3 - Individuals acknowledged as entitled to exercise native title rights and interests under the traditional laws and customs of the Native Title Holders:

·               Emily Churchill

·               Hughie Tjami

·               Keith Minungka

THE COURT ORDERS THAT:

1.                  Pursuant to section 67 of the Native Title Act 1993 (Cth), to the extent that the Wangkangurru/Yarluyandi Native Title Claim (SAD 6016 of 1998) and the Eringa Native Title Claim (SAD 6010 of 1998) overlap the claim area of the Irrwanyere Mt Dare Native Title Claim (SAD 66 of 2005) they are to be heard and determined together in the same proceeding as the Irrwanyere Mt Dare Native Title Claim with the Applicant to the Wangkangurru/Yarluyandi being joined to that proceeding as the

Second Applicant and the Applicant in the Eringa Native Title Claim being joined as the Third Applicant.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BY CONSENT THE COURT MAKES THE FOLLOWING DETERMINATION OF NATIVE TITLE:

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,

(a)        “the Park” means the whole of the area reserved as a National Park under the provisions of the National Parks and Wildlife Act 1972 (SA) (“NPWA”) and proclaimed as the Witjira National Park in Government Gazette dated 21 November 1985, being Section 1495 Out of Hundreds Dalhousie.

(b)          “the Determination Area” means that part of the Park covered by the Irrwanyere Mt Dare Native Title Claim (SAD 66 of 2005) being all of the land which is subject to the Mt Dare Lease as shown in the map comprising Schedule 1 hereto.

(c)          “the Vesting” means the vesting of the Park in the Crown pursuant to section 35 of the NPWA by reason of the reservation and proclamation referred to in subparagraph (a) above.

(d)          “the ILUA and CMA” means the Indigenous Land Use Agreement and Co-Management Agreement relating to the Park and executed by the parties on 13 August 2007.

3.                  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 1, the written description shall prevail.

Existence of Native Title

4.                  Native title exists in the Determination Area.

5.                  Section 47A of the Native Title Act applies to the Irrwanyere Mt Dare Native Title Claim.  Subject to paragraph 6 all extinguishment of native title rights and interests over the Determination Area prior to 30 March 2005 is to be disregarded.

6.                  Native title does not exist in relation to the areas and resources described in paragraphs 14 and 15 herein.

The native title holders

7.                  The Native Title Holders are those Lower Southern Arrernte and Wangkangurru persons who have a traditional connection to the Determination Area and are described in Schedule 2.

8.                  In addition, the individuals named in Schedule 3 are acknowledged as entitled to exercise native title rights and interests in the Determination Area under the traditional laws and customs of the Native Title Holders.

Native title rights and interests

9.                  The nature and extent of the native title rights and interests held by all native title holders in relation to the Determination Area are rights to use, occupy 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 live, to camp and to erect shelters on the Determination Area;

(c)        The right to hunt on the Determination Area;

(d)        The right to gather and use the natural resources of the Determination Area such as food, plants, timber, ochre and feathers;

(e)        The right to cook and to light fires for cooking and camping purposes on the Determination Area;

(f)         The right to use the natural water resources of the Determination Area;

(g)        The right to distribute, trade or exchange the natural resources of the Determination Area;

(h)        The right to conduct ceremonies and hold meetings on the Determination Area;

(i)         The right to engage and participate in cultural activities on the Determination Area including those relating to births and deaths;

(j)         The right to teach on the Determination Area the physical and spiritual attributes of locations and sites within the Determination Area;

(k)        The right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the Determination Area;

(l)         The right to speak for and make decisions in relation to the Determination Area 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;

(m)       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.

10.              The native title rights and interests arefor personal, domestic or communal use.

11.              The native title rights and interests arenon-exclusive (with the exception of those set out in subparagraph 9(l)) and 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.

Nature and extent of other interests

12.              The nature and extent of other interests in relation to the Determination Area are:

(a)        the rights exercisable under the ILUA and CMA in accordance with their terms;

(b)        the interests created under the IAC Lease;

(c)        the interests of the Crown in right of the State of South Australia;

(d)        the rights of the public to use and enjoy the Determination Area in accordance with the provisions of the NPWA and associated regulations (subject to the IAC Lease) and in accordance with the provisions of the Mount Dare lease;

(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 (in accordance with the NPWA or any other Act).

(f)         the rights and interests of Telstra Corporation Limited:

(i)         as the owner or operator of telecommunications facilities within the Determination Area, including customer radio terminals and cabling;

(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); and

(iii)        for its employees, agents or contractors to enter the Determination Area to access its facilities in and in the vicinity of the Determination Area.

13.              The relationship between the native title rights and interests in the Determination Area that are described in paragraph 9 and the other rights and interests that are referred to in paragraph 12 (“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;

(c)        the native title rights and interests continue to exist but have no effect in relation to the Vesting.

14.              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).

15.              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 constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date.

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 six months of the date of this Order, is to:

(a)        be the prescribed body corporate for the purposes of s57(2) of the Native Title Act; and

(b)        perform the functions mentioned in s 57(3) of the Native Title Act after becoming a registered native title body corporate.

18.              The parties have liberty to apply on 14 days notice to a single judge of the Court for the following purposes:

(a)        as to the identification of the Aboriginal corporation referred to in the preceding paragraph;

(b)        to establish the precise location and boundaries of the public works and adjacent land and waters referred to in paragraph 15 of this determination.

SCHEDULE 1 - Map of the Determination Area

SCHEDULE 2 - Native Title Holders

·               All of the descendants of Wiljali

·               All of the descendants of Yungili and Yungili's brother and their wives, being the sisters Maggie and Bugagaguna

·               All of the descendants of Opossum (including Billy Ngaltagintata Reese)

·               All of the descendants of the sibling pair Nguramariu (male) and Pungatjuntu (female)

·               All of the descendants of the siblings Iljili - Banggana and Iljili - Birbana

·               All of the descendants of the siblings Ruby and Elsie Girranungada Nancurda

·               All of the descendants of Willy Doolan

·               All of the descendants of Lalayi

·               All of the descendants of Jimmy Arrerte

·               All of the descendants of Lilly Summerfield (Summerville)

·               Marilyn Rose Hull Ah Chee and all of her descendants

·               Ian Hodgson and all of his descendants

·               All of the descendants of Angeline (including Ruth McKenzie, Tom Cramp and Jenny Stewart)

·               All of the descendants of Mary Cleanskin (Nyukapinya) (including Billy Bailes and June Bailes)

·               All of the descendants of Anatjari and  Wiltiwa (the parents of Lilly, the Arrernte mother of Edie King)

·               All of the descendants of Harry Taylor

SCHEDULE 3 - Individuals acknowledged as entitled to exercise native title rights and interests under the traditional laws and customs of the Native Title Holders:

·               Emily Churchill

·               Hughie Tjami

·               Keith Minungka

REASONS FOR JUDGMENT

1                     Four separate applications for a determination of native title under s 61 of the Native Title Act 1993 (Cth) (the NTA) have been made by the Wangkangurru/Yarluyandi (WY), Eringa, Eringa No. 2 and Irrwanyere Mt Dare native title claim groups (together, the claimants), over claim areas along the northern border of South Australia. The WY claim area also covers the south west corner of Queensland. Each of the corresponding claim areas include part of the Witjira National Park (the Park) and each of the claim areas overlaps with one or more of the other claim areas.

2                     The Park was reserved as a National Park and vested in the Crown under the provisions of the National Parks and Wildlife Act 1972 (SA) (NPWA). Prior to this reservation and vesting in 1985, the whole area now comprising the Park was held under various pastoral leases, pastoral permits, water reserves and miscellaneous leases or was vacant crown land.

3                     The Park is currently the subject of two leases.  The first is a 99 year lease between the Minister for the Environment and Natural Resources and Irrwanyere Aboriginal Corporation (“the IAC”) over the whole area of the Park save for the area covered by the Mt Dare Lease and two other areas that have been “fenced out” to adjoining pastoral leases.  The lease is dated 5 October 1995 subject to a Deed of Variation dated 13 August 2007 (the lease as varied being “the IAC Lease”) and is made pursuant to section 35 of the NPWA for the purposes of the use and occupation by Aboriginal people having traditional association with the Park, the enhancement of the cultural and social aspirations of those people and to achieve the management objectives set for the Park under the NPWA. The IAC Lease is further expressed not to have any extinguishing effect on the native title rights and interests of those Aboriginal people.

4                     The second lease over the Park between the Minister for Environment and Planning and Driveline Pty Ltd dated 1 July 1989 (“the Mount Dare Lease”) is over the area of land in and about Mt Dare Homestead as described in that lease.  The Mount Dare Lease is made pursuant to section 35 of the NPWAand is for the purpose of a tourist facility.  It was held by the Indigenous Land Corporation (“ILC”) at the time the SAD66/2005 Irrwanyere Mount Dare Determination Application was made.

5                     Since 1995, the Park has been managed in accordance with the Management Plan adopted pursuant to the NPWAfor the Park dated October 1995.

6                     The parties to these determinations agree that section 47A of the Native Title Act 1993 (Cth) (“Native Title Act”) applies to the native title claims to the extent that they relate to the determination areas save as to those two areas that have been “fenced out” to adjoining pastoral leases and that all prior extinguishment over the determination area save as to those two areas is to be disregarded.  A determination of native title would not affect the validity of the reservation of the determination areas as a National Park or its vesting in the Crown or of the grant of the IAC Lease.

7                     The Parties executed an Indigenous Land Use Agreement (“the ILUA”) and a Co-Management Agreement (“the CMA”) relating to the Park on 13 August 2007.

8                     The parties to each of the applications for determination of native title who have interests in those parts of the claim areas that cover the Park have reached an agreement and have applied under s 87 and 87A of the NTA for three determinations by consent over those parts of the claims that cover the Park (the determination area). Despite there being different claimants for each claim, the proposed native title holders are identical across the determination area, being those Lower Southern Arrernte and Wangkangurru persons who have a traditional connection to the determination area, as described in schedule 2 of each of the Determinations. The determination area covers the whole of the Park, the whole of the Irrwanyere Mt Dare native title claim and part of the other three native title claims.  Maps of the determination area are included in schedule 1 of each of the Determinations.

Background to the agreement

9                     The original applications in the WY, Eringa and Eringa No. 2 claims were filed on 21 August 1997, 30 September 1998 and 26 May 1998, respectively. On 25 March 2002, O’Loughlin J referred the WY claim to the National Native Title Tribunal (NNTT) for mediation, with the Eringa and Eringa No. 2 claimants being entitled to participate. The NNTT has regularly reported on the progress of that mediation, most recently on 29 February 2008.

10                  One issue dealt with in that mediation was an overlap between the WY, Eringa and Eringa No. 2 claims.  The area of the overlap was primarily over the Park, the lease over which is held by the IAC. The IAC is comprised of members of each of the claimants with a claim over the Park. During negotiations facilitated by the NNTT in February 2005, the claimants agreed that the IAC would assume responsibility for each of the claims in the overlap area. With the overlap issue thus resolved, the NNTT facilitated further negotiations between the legal representatives of the claimants, South Australian Native Title Services Ltd (at the time known as the Aboriginal Legal Rights Movement), and the State of South Australia with a view to achieving a consent determination over the Park.

11                  At the mediation in February 2005, the claimants also agreed that the IAC should lodge a further application for native title over the part of the overlap area which comprises the Mt Dare homestead lease. That application (the Irrwanyere Mt Dare claim) was filed on 30 March 2005 and was made specifically for the purpose of securing rights under section 47A of the NTA (the lease was at the time held by the ILC).

12                  As a result of the above events, the parties in each of the four claims were able to come to an agreement, and now seek a determination of native title over the Park, by consent.

Orders pursuant to s 67 of the NTA

13                  In order that the overlapping portions of the claim areas can be dealt with in the same proceeding, the relevant parties have also applied for orders under s 67 of the NTA. The proposed orders would effectively split the determination area into three non-overlapping segments. Those segments would then become separate proceedings over which determinations of native title could be made. I note that the native title holders will be identical for each of the segments. The segments are:

(a)        that part of the WY claim area that overlaps the Park and the Eringa No. 2 claim area (the Wangkangurru/Yarluyandi Part A Proceeding);

(b)        that part of the WY claim area that overlaps the Park and the Eringa claim area, but not including the area covered by the Irrwanyere Mt Dare claim area (the Eringa Part A Proceeding); and

(c)        the Irrwanyere Mt Dare claim area (which overlaps the Park and the WY and Eringa claim areas)(the Irrwanyere Mt Dare Proceeding).

14                  I consider the orders sought under s 67 to be appropriate. Accordingly, I make the orders as sought by consent of the parties.

Orders pursuant to s 87 and 87A

15                  As the proposed determination in the Irrwanyere Mt Dare Proceeding covers the entire Irrwanyere Mt Dare claim area, the determination is sought under s 87 of the NTA. Determinations in the other proceedings are sought under s 87A. The purpose of s 87A as articulated in the Explanatory Memorandum to the Bill inserting the section is “to facilitate resolution of part of a claim by agreement where certain interest holders agree to a determination being made”. The provision is intended to “assist to prevent those parties with interests that only relate to part of the claim area, and other parties with less significant interests in relation to the overall claim, from blocking resolution of the claim in relation to a separate part of the claim area”.

16                  Under both section 87 and 87A, in order to make the proposed consent determinations, the Court must be satisfied that it has the power to do so, and that it is appropriate to make the orders sought.

17                  Both sections require that the period of notice under s 66 of the NTA must have elapsed and s 87 also requires that a signed copy of the agreed orders be filed with the Court.  The relevant notification periods under s 66 expired on 7 May 2001 (WY), 13 March 1998 (Eringa), 17 September 2003 (Eringa No. 2) and 1 February 2006 (Irrwanyere Mt Dare). A copy of the orders upon which the parties have agreed was filed in each proceeding to which they are relevant on 13 November 2007. The minutes of consent orders relating to s 67 were filed later on 28 November 2008.

18                  Section 87A(3) states that the Registrar must give notice to the other parties to a proceeding that the proposed determination of native title has been filed with the Court. On filing of the draft orders a registrar of the Court notified the parties to the WY, Mt Dare and Eringa claims that the proposed consent determinations had been filed in compliance with subsection 87A(3). The registrar enclosed a copy of the proposed determination and informed parties that they would have 14 days to file an objection. An identical letter was sent to the parties in the Eringa No. 2 claim on 21 February 2008. The Court has received three letters in response to the notification:

·                    a letter dated 28 November 2007 from the representative for pastoralists, Macumba Station (respondent in the Eringa, Eringa No. 2 and WY claims) and Hamilton Station (respondent in the Eringa and WY claims). The representative’s letter stated that there are areas of Witjira within the determination area that are fenced into Macumba and Hamilton Stations “as if they were part of their respective leases” and “areas within the respective pastoral leases that are fenced into the Park as if they formed part of the Park”. The representative noted that these areas are to form part of future pastoral ILUA negotiations and as a consequence, her clients have no objection to the proposed Consent Determination over the Witjira Park.

·                    a letter dated 27 November 2007 from Blake Dawson Waldron (BDW) acting for Telstra (respondent in the Eringa and WY claims). That letter indicated that, subject to resolution of some drafting issues which have now been addressed, Telstra does not object to the determination. Telstra has no interests in Wangkangurru/Yarluyandi Part A Proceeding. Telstra does have interests in the Irrwanyere Mt Dare Proceeding and these have been included in the determination and Telstra does not seek to become a party to that claim.

·                    a letter dated 7 December from MacDonnells Solicitors acting for Ergon Energy Corporation (respondent in the WY claim) indicating that Ergon consents to the proposed determination in WY Part A.

19                  Section 87A(1)(c) states that s 87A applies if:

all of the following persons are parties to the agreement:

(i)            the applicant;

(ii)           each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made;

(iv)          each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made;

(v)           each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made;

(vi)          each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made;

(vii)         the Commonwealth Minister, if the Commonwealth Minister is a party to the proceeding at the time the agreement is made or has intervened in the proceeding at any time before the agreement is made;

(viii)        if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made;

(ix)          any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made.

20                  The terms of the pastoralists’ letter raise the issue of whether s 87A(1)(c)(v) requires the lessees over the Hamilton and Macumba stations, which, as mentioned above, may have parts of the determination within their fence-line, to be signatories to the agreement. However, their interests have been explicitly dealt with in the proposed determination, of which they have been notified. The lessees have indicated that they do not object to the making of the consent determination, and as such do not seek to be joined as parties to the Eringa Part A Proceeding or the Wangkangurru/Yarluyandi Part A Proceeding. Consequently, I am satisfied that those persons are not required to be signatories to the agreement, and that the requirements of s 87A(1)(c) are otherwise met.

21                  Section 94A of the NTA requires any Order containing a determination of native title to set out the details of the matters mentioned in s 225, which defines a determination of native title as:

… 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.

22                  I am satisfied that the proposed orders have properly set out the matters mentioned in s 225 of the NTA. Consequently, I find that the Court has the power to make the orders sought. It remains to now consider whether it is appropriate to make those orders.

23                  Native Title is defined in s 223(1) of the NTA as:

the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(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.

24                  I am satisfied that the proposed orders have properly set out the matters mentioned in s 225 of the NTA. Consequently, I find that the Court has the power to make the orders sought. It remains to now consider whether it is appropriate to make those orders.

25                  Native Title is defined in s 223(1) of the NTA as:

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.

26                  In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, at [86]-[87], Gleeson CJ, Gummow and Hayne JJ held that:

…the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. … "traditional" in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty.

… acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty.

27                  In support of the application for a consent determination of native title, the State of South Australia has filed written submissions on behalf of all of the principal parties in each of the four claims.  The submissions also attach a summary of the evidence in support of a determination filed in the proceedings, being various reports jointly authored by Ms Susan Woenne-Green, Ms Lyn Coad and Mr Jacob Habner, who are anthropologists with South Australian Native Title Services Ltd.

28                  The people asserting native title rights and interests in the Park, the Lower Southern Arrernte and Wangkangurru, are two ‘closely interrelated and interpenetrating yet distinct societies’. The link of the claimants to the land and waters of the park at the time of sovereignty is evidenced by numerous ancestors of the contemporary claimants who were born at various places in the area during the late nineteenth century.

29                  The continued existence and vitality of the societies’ traditional laws and customs is said to have traditionally been passed down through patrifilial association, which more recently evolved into a cognatic form, though with an emphasis in the Lower Southern Arrernte claimants on patrifilial association where that can be established. Accordingly, the manner in which the claimants have gained rights and interests is systematic and traditional.

30                  The claimants have demonstrated that the individual societies are united in their acknowledgment and observance of traditional laws and customs by providing contemporary evidence of ways in which that is achieved. That included, for the Lower Southern Arrernte, claimants evidence concerning an age based hierarchy, visiting and cleaning sacred sites, teaching children about bush tucker in the Park, gender and other restrictions on ritual and religious information and behaviour, handing down of names, initiation ceremonies, particular kinship terms, songs and stories.  For the Wangkangurru claimants, the evidence concerned a regional system of authority, age based hierarchy, belief in spiritual sanctions, handing down of names, kinship terms, the passing down of knowledge, stories and the use of bush tucker.

31                  The claimants have maintained their connection with the area by the inheritance of rights from an ancestor. Other forms of physical connection exist through members visiting and cleaning sacred sites, teaching children about bush tucker in the Park, a claimant acting as a park ranger, and regular camping trips in the Park for the purpose of teaching dreaming stories to children. A number of claimants have also played an important role in the Park’s land management.

32                  The evidence shows that a number of ‘core’ and ‘contingent’ rights arise from the traditional laws and customs of the claimants. The core rights include the right to claim country as ones own, the right to acquire ownership and authority over knowledge and songs associated with the country, the right to speak for country, the right to be asked for permission to access country by ‘non-owners’, and the right to make decisions about country. Contingent rights are said to include the right to access and occupy the country, and the right to use the resources of the country.

33                  The purpose of ss 87 and 87A of the Act is to facilitate and encourage the resolution of native title claims by agreement between the parties. Necessarily, the Court adopts a different approach to the task of deciding whether it is appropriate to enter a determination reached by agreement than it brings to the task of deciding whether native title should be recognised in a contested matter. In each case the definition of native title is the same. The Act requires the Court to set out details of the matters mentioned in s 225 in all determinations whether reached by agreement or contest. Although there needs to be some foundation upon which the Court can exercise its jurisdiction, in matters in which the parties have reached agreement on the terms of a determination the Court will have particular interest in whether the agreement has been freely entered into and on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; Ward v State of Western Australia [2006] FCA 1848; Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474.  If that question is answered in the affirmative, the Court will consider the fact that an agreement has been reached as weighing in favour of the making of a determination of native title: James on behalf of the Martu People v State of Western Australia [2002] FCA 1208.

34                  The evidence provided in these matters supports the claimed connection of the claimants to their country. The determination sought does not appear in any way to be unfair or unjust. All parties to the agreement were legally represented and there is no suggestion that any party entered the agreement otherwise than by their own free will. Consequently, I consider that it is appropriate to make orders for the determination of native title over the determination area in the terms proposed.

Associate:

Dated:         11 September 2008