FEDERAL COURT OF AUSTRALIA

Adnyamathanha No 1 Native Title Claim Group v The State of South Australia [2009] FCA 358

GORDON COULTHARD, ANGELINA STUART, GERALDINE (THATHY) ANDERSON, VINCENT COULTHARD, STEWART PATTERSON, BEVERLEY PATTERSON, MARK MCKENZIE ON BEHALF OF THE ADNYAMATHANHA PEOPLE v THE STATE OF SOUTH AUSTRALIA & OTHERS

SAD 6001 of 1998

MANSFIELD J

19 MARCH 2009

ADELAIDE

THE COURT ORDERS THAT:

1.         The hearing of the proposed consent determinations in respect of these proceedings be confirmed for 30 March 2009, with a separate consent determination to be entered in relation to Angepena Station.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR RULING

1                          This is an application for separate determinations of native title under s 61(1) of the Native Title Act 1993 (Cth) (the NT Act) in respect of an area described in the oral application as covering a single pastoral lease in the Adnyamathanha No 1 Native Title Claim, Angepena Station (the Angepena area) as well as over a much larger, but not the entire, area of the Adnyamathanha No 1 Native Title Claim. 

2                          The three proposed consent determinations relate to two claims made under the NT Act.  The first is the Adnyamathanha No 1 Native Title Claim, a claim over a very substantial area of South Australia extending roughly from the eastern boundary of Lake Torrens beyond the eastern boundary of Lake Frome almost to the border with New South Wales, and in the north from the Strzelecki Ranges to its southern boundary being a line more or less running east from Port Augusta.  The second claim is the Adnyamathanha No 2 Native Title Claim, which is entirely within the boundaries of the Adnyamathanha No 1 Native Title Claim, over the Flinders Ranges National Park.

3                          It is proposed that only part of the Adnyamathanha No 1 Native Title Claim area presently be the subject of consent determinations, and that there be two consent determinations over that part of the claim area.  The smaller part is the Angepena area, east of Copley.  The larger part is over much of the claim area, excluding a section in its northern region where, presently, there is an overlapping claim by the Dieri people and a section in its southern and eastern sections in respect of which there is ongoing negotiations between the parties but where (I am informed) the material to support connection (see s 223 of the NT Act) requires further research or analysis.  The parties through counsel have indicated that they are confident that, within the next several months, those issues will be resolved and the balance of the Adnyamathanha No 1 Native Title Claim will also proceed to a consent determination.

4                          The third proposed consent determination is over the Adnyamathanha No 2 Native Title Claim.

5                          These reasons explain why I propose to accede firstly to the applications of the claimants in the Adnyamathanha No 1 Native Title Claim to make consent determinations at this point, notwithstanding that it appears likely that a consent determination over the whole of the claim area will be sought within the next several months, and secondly to the making of a separate consent determination over the Angepena area.  The claimants’ applications are supported by the State of South Australia, and are not opposed by any other respondent party.

6                          Each application is made under s 87A of the NT Act.  Section 87A was introduced into the NT Act by the Native Title Amendment Act 2007 (Cth), Sch 2 cl 35.  It provides:

Power of Federal Court to make determination for part of an area

Application

(1)        This section applies if:

(a)        there is a proceeding in relation to an application for a determination of native title; and

(b)        at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) included in the area covered by the application; and

(c)        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; and

(d)  the terms of the proposed determination are in writing and signed by or on behalf of each of those parties.

Proposed determination may be filed with the Court

(2)        A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court.

Certain parties to the proceeding to be given notice

(3)        The Registrar of the Federal Court must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court.

Order may be made

(4)        The Court may make an order in, or consistent with, the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

(a)        an order in, or consistent with, the proposed determination would be within its power; and

(b)        it would be appropriate to do so.

Note:    As the Court's order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders).

(5)        In considering whether to make an order in, or consistent with, the proposed determination of native title, the Court must take into account any objections made by the other parties to the proceeding.

7                          I note that s 87A(1)(c)(v) was then amended by the Native Title Amendment (Technical Amendments) Act 2007 (Cth), Sch 1 cl 91 to read as set out above.  In each instance, the enactment said that it applied to any application under s 61 of the NT Act, whether made before or after the amendment: see Sch 2 cl 82 and Sch 1 cl 134 respectively.  Consequently, the fact that the Adnyamathanha No 1 Native Title Claim was made before 2007 is of no significance.

8                          The purpose of s 87A is clear.  It is to facilitate resolution of part of a claim by agreement, where those whose interests are directly affected by part of a claim have agreed upon a determination being made.  Those whose interests are in other parts of the claim area are not routinely in a position to block partial resolution of the claim over a separate part of the claim area.  Such persons are nevertheless entitled to be notified of the proposed consent determination over part of the claim area under s 87A(3) and may object to the Court under s 87A(5).  That notification has been undertaken, and no objections under s 87A(5) received.

9                          Section 87A clearly facilitates consent determinations such as the present compared to s 87.  Although s 87(1)(a)(ii) permits the making of a consent determination in relation to a “part of the proceedings”, s 87(1)(a) and (b) require the consent of all parties to the proceedings rather than only those parties whose interests are directly affected by that part of the claim area to be the subject of the consent determination: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109.  In that case, to enable a consent determination to be made over part only of the claim area, the claim area was amended to cover only the proposed consent determination, and a fresh application under s 61 of the NT Act was made in respect of the balance of the previous claim area: see per Emmett J at [17]-[18].

10                       
For a brief period, s 87(1)(d) was inserted into the NT Act to provide that the Court could not make an order under s 87 unless satisfied that an order in, or consistent with, the terms of an agreement could not be made as a consent determination under s 87A.  It was introduced by the Native Title Amendment Act 2007 (Cth) and repealed by the Native Title Amendment (Technical Amendments) Act 2007 (Cth), and so in force between 15 April 2007 and 21 July 2007: see the discussion by French J in Billy Patch and Others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [7].  As there discussed, the benefit of an order under s 87A – in addition to the facilitation of it by requiring the consent of those whose interests are only directly affected – is twofold.  The claim area is automatically amended, so that the unresolved area remains as the claim area: s 64(1B), and secondly the claim as so amended does not have to go back through the registration test: s 190A(1A), and the claim as amended remains registered: s 190(3)(a)(iii).

11                        I have no hesitation in deciding that it is appropriate, subject to considering the more general requirements of the NT Act, to make an order under s 87A over the larger area of the Adnyamathanha No 1 Native Title Claim by way of a consent determination.  It will result in a mutually satisfactory outcome to that portion of the claim, from both the points of view of the applicants and the respondents, in as timely and efficient a manner as possible.  There are good reasons why the balance of the claim area is not presently capable of being the subject of a consent determination.  Indeed, in its northern part where it overlaps with a claim by the Dieri people, the ultimate outcome (hopefully to be agreed) may be in somewhat different terms to that presently proposed, at least to accommodate the claims made by separate claimant groups.

12                        It is not routinely desirable that, where there has been an agreed resolution of all or part of a claim area, the consequential consent determination should then be splintered into a series of separate consent determinations over, for example, a number of separate areas identified by separate pastoral leases.  In the first place, the claim having been made on behalf of a native title claim group and the determination recognising the claimant group native title rights and interests (see ss 223 and 225), there will be no reason to make separate determinations over separate parts of the claim area unless there is a particular reason to distinguish between the holders of the native title rights and interests or to distinguish between the nature of those rights and interests held in one part of the resolved claim area rather than another part or parts of it.  Secondly, there are generally obvious efficiencies in dealing with the settled part of the claim area in one consent determination, having regard to the matters to be addressed under ss 55, 56 and 57 when making a determination of native title.

13                        None of those observations is intended to inhibit the full use of s 87A in respect of a part or parts of a claim area.  Its benefits are manifest from its terms.  It is simply to indicate that, in my view, once a proposed determination in respect of an area included in the wider claim area is proposed, there should be a sound reason for any further “subdivision” of the area.  Although it now appears that the proposed sale of the Angepena area will not proceed, Operation Flinders presently anticipates continuing to conduct its program on the Angepena area.  Detailed discussions have occurred, and continue, regarding the potential shared use of that area to accommodate and continue the interests of Operation Flinders to give effect to the Pastoral Land Management and Conservation Act 1989 (SA), and of course to recognise and give effect to the native title interests of the Adnyamathanha People.  The claimants, the State, the Commonwealth, the Adnyamathanha Traditional Lands Association, Operation Flinders and the pastoralist, are all agreed that there should be a separate determination over the Angepena area because of the complex and varying proposed land uses over the area. All parties have proceeded on the basis that the Angepena area would be the subject of a separate consent determination, owing to the complex and varied nature of the proposed land uses.

14                        The second reason why, it is submitted, that the Court should make a separate order over the Angepena area is that since the mediation in July 2008, extensive negotiations have occurred between all the parties about a number of agreements to be put into place relating to its land use, including an Indigenous Land Use Agreement (ILUA) (focusing not only on the needs of Operation Flinders, but also on the heritage protection issues relating to Angepena). Further, there have been negotiations about a natural resource management plan for the Angepena area, a management plan for the land, the waters and for particular issues relating to the facilitation of enjoyment of native title rights and for Aboriginal heritage. All parties presently anticipate the work and negotiations already conducted will be translated into agreements in relation to the Angepena area in the form of an ILUA and a land management plan. They are, I am satisfied, likely to be in a form which will not readily apply beyond the Angepena area.

15                        In my view, it is appropriate in the circumstances to make a separate consent determination over the Angepena area for the reasons explained above.

Associate:

Dated:         17 April 2009