FEDERAL COURT OF AUSTRALIA

Lander v State of South Australia [2012] FCA 427

THE COURT NOTES THAT:

A    The Applicant first lodged Native Title Determination Application No. SAD 6017 of 1998 (the Application) with the National Native Title Tribunal on 21 August 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 whole of the land and waters covered by the Application. They have filed with this Court, pursuant to section 87 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 State of South Australia asserts that the Vesting (as defined in paragraph 1 (b)) of those parts of the Determination Area in the Crown listed in Schedule 4 (“the Schedule 4 Areas”) means that the exercise of all native title rights and interests in relation to those areas (whether exclusive or non-exclusive) was suppressed at the date of the Vesting, pursuant to the non-extinguishment principle established by the Native Title Act. Accordingly, all native title rights and interests in the Schedule 4 Areas remain suppressed for as long as those areas remain vested in the Crown under the National Parks and Wildlife Act 1972 (“the NPWA”) or other relevant State legislation.

D    The Applicants assert with regard to the Schedule 4 Areas that some native title rights are not suppressed by the Vesting but acknowledge the operation of the non-extinguishment principle provided for in the Native Title Act.

E    The Parties have agreed to the following orders in relation to the native title rights and interests, reflecting (insofar as those orders relate to the Schedule 4 Areas) a compromise of the issue addressed in Recitals C and D.

F    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 Paragraph 3 of this Order.

G    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:

Interpretation & Declaration

1.    In this determination, including its schedules:

(a)    unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Part 15 of the Native Title Act;

(b)    “the Vesting” means the vesting of a Park or Reserve in the Crown pursuant to the NPWA as listed in Schedule 4; and

(c)    in the event of an inconsistency between a description of an area and the depiction of that area on the map in Schedule 2, the written description shall prevail.

2.    Native title exists in the areas described in Schedule 1 with the exception of those areas described in paragraphs 9, 11, 12, and 14 (“the Determination Area”).

Native Title Holders

3.    Under the relevant traditional laws and customs of the Dieri people, the native title holders comprise those living Aboriginal people who:

(a)    are the descendants of the following apical ancestors:-

(i)    Ruby Merrick and Tim Maltalinha (also known as Tim Merrick) who are the parents of the sibling set - Martin, Gottlieb, Rebecca, Selma (or Thelma);

(ii)    Kuriputhanha (known as ‘Queen Annie’) mother of Karla-warru (also known as Annie);

(iii)    Mary Dixon (born at Killalpaninna) mother of the sibling set - Dear Dear (known as ‘Tear’), Jack Garret, George Mungerannie, Joe Shaw, and Henry;

(iv)    Bertha mother of the sibling set - Johannes and Susanna;

(v)    Walter Kennedy husband of Selma (also known as Thelma) nee Merrick;

(vi)    Florrie wife of Martin Merrick;

(vii)    Clara Stewart (nee Murray), the mother of Eddie Stewart, and;

(viii)    The man Pinngipania (born at Lake Hope) and the woman Kulibani (born at Kalamarina) who are the parents of Sam Tintibab (or Dindibana Ginjmilina); and

(b)    identify as Dieri; and

(c)    are recognised by the other Native Title Holders under the relevant Dieri traditional laws and customs as holding native title rights and interests in the Determination Area.

Rights And Interests

4.    Subject to Paragraphs 5, 6 and 7, 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 of 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, resin, ochre and feathers but excluding those resources referred to in Paragraph 11;

(d)    the right to share and exchange the subsistence and other traditional resources of the Determination Area;

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

(f)    the right to live, to camp and, for the purpose of exercising the native title rights and interests, to erect shelters on the Determination Area;

(g)    the right to cook on the Determination Area and to light fires for domestic purposes but not for the clearance of vegetation;

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

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

(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; and

(l)    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.

General Limitations

5.    The native title rights and interests are for personal, domestic and communal use but do not include commercial use of the Determination Area or the resources from it.

6.    The native title rights and interests described in paragraph 4 do not confer possession, occupation, use and enjoyment of the Determination Area on the native title holders to the exclusion of others.

7.    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 of South Australia and Commonwealth, including the common law.

For the avoidance of doubt, the native title interest expressed in Paragraph 4(e) (the right to use the natural water resources of the Determination Area) is subject to the Natural Resources Management Act 2004 (SA).

8.    Native title does not exist in the areas and resources described in Paragraphs 9, 11, 12 and 14 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 Paragraph 15(a) below constructed prior to the date of this determination. These areas include any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements referred to.

10.    To be clear, Paragraph 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 Paragraph 9 after the date of this determination.

11.    Native title rights and interests do not exist in:

(a)    Minerals, as defined in section 6 of the Mining Act 1971 (SA); or

(b)    Petroleum, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA); or

(c)    a naturally occurring underground accumulation of a regulated substance as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; or

(d)    a natural reservoir, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; or

(e)    geothermal energy, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA) the source of which is below a depth of 100 metres from the surface of the earth.

For the purposes of this paragraph 11 and the avoidance of doubt:

(i)    a geological structure (in whole or in part) on or at the earth's surface or a natural cavity which can be accessed or entered by a person through a natural opening in the earth's surface, is not a natural reservoir;

(ii)    thermal energy contained in a hot or natural spring is not geothermal energy as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    the absence from this order of any reference to a natural reservoir or a naturally occurring accumulation of a regulated substance, as those terms are defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), above a depth 100 metres below the surface of the earth or geothermal energy the source of which is above a depth of 100 metres below the surface of the earth is not, of itself, to be taken as an indication of the existence or otherwise of native title rights or interests in such natural reservoir, naturally occurring accumulation of a regulated substance or geothermal energy.

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

13.    Public Works constructed, established or situated after 23 December 1996 have had such effect as has resulted from Part 2, Division 3, of the Native Title Act.

14.    Those areas described in Schedule 3 have been excluded from the Determination Area because native title has been extinguished over them.

Other Interests & Relationship with Native Title

15.    The nature and extent of other interests to the Determination Area are:

(a)    the interests within the Determination Area created by the following pastoral leases:

(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 including, but not limited to, rights and interests granted or recognised pursuant to the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Mining Act 1971 (SA), Petroleum and Geothermal Energy Act 2000 (SA) and Opal Mining Act 1995 (SA), all as amended from time to time;

(d)    rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth;

(e)    the rights to access land by an employee or agent or instrumentality of the State of South Australia, 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 Limited (or its corporate successor):

(i)    as the owner or operator of telecommunications facilities within the Determination Area;

(ii)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth) including rights;

(1)    to inspect land;

(2)    to install and operate telecommunication facilities within the Determination Area;

(3)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities, including cabling, customer terminal sites and ancillary facilities; and

(4)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties;

(iii)    under or arising from section 18 of the Crown Land Management Act 2009 (SA) or section 5 of the Crown Lands Act 1929 (SA);

(iv)    under any lease, licences, access agreements or easements relating to its telecommunications facilities in the Determination Area.

(g)    The rights and interests of BHP Billiton Olympic Dam Corporation Pty Ltd:

(i)    in the Indenture (as amended) and ratified by the Roxby Downs (Indenture Ratification) Act 1982 (SA), and rights, powers, privileges and interests comprised in, conferred under or in accordance with or pursuant to that Indenture and the Roxby Downs (Indenture Ratification) Act 1982 (SA);

(ii)    as the holder of a Special Water Licence over Borefield B (SWL Borefield B) granted pursuant to the Indenture ratified by the Roxby Downs (Indenture Ratification) Act 1982 (SA);

(iii)    as the owner of easement CT 5514/452; and

(iv)    for BHP Billiton Olympic Dam Corporation Pty Ltd’s employees, agents or contractors to enter the Determination Area to access BHP Billiton Olympic Dam Corporation Pty Ltd’s rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties.

(h)    The rights and interests of the “Producers” as defined by the Cooper Basin (Ratification) Act 1975 (SA):

(i)    as holders of Petroleum Production Licences PPL6, PPL7, PPL8, PPL10, PPL17, PPL18, PPL19, PPL20, PPL29, PPL32, PPL35, PPL37, PPL45, PPL46, PPL47, PPL48, PPL51, PPL52, PPL53, PPL54, PPL55, PPL56, PPL57, PPL60, PPL61, PPL63, PPL64, PPL65, PPL66, PPL67, PPL68, PPL70, PPL75, PPL80, PPL81, PPL83, PPL84, PPL91, PPL94, PPL95, PPL101, PPL107, PPL124, PPL126, PPL127, PPL129, PPL137, PPL140, PPL143, PPL144, PPL145, PPL148, PPL150, PPL153, PPL154, PPL160, PPL161, PPL162, PPL165, PPL175, PPL176, PPL177, PPL178, PPL180, PPL196, PPL230, PPL233 and PPL 238 (“the Producers Petroleum Production Licences”) granted pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) and the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    as the owners and operators of flow-lines and other infrastructure reasonably necessary for and incidental to the Producers’ Petroleum Production Licences pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) and the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    created pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) and the Petroleum and Geothermal Energy Act 2000 (SA);

(iv)    for the Producers’ employees, agents or contractors to enter the Determination Area to access the Producers’ rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties.

(i)    The rights and interests of Geodynamics Limited (ACN 095 006 090) ("Geodynamics") and Origin Energy Geothermal Pty Ltd (ACN 128 159 277) (“Origin”):

(i)    as holders of Geothermal Retention Licences GRL 20; GRL 21; GRL 22; GRL 23; and GRL 24 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    for the employees, agents and contractors of Geodynamics and/or Origin to enter the Determination Area to access the rights and interests of Geodynamics and/or Origin and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties.

(j)    The rights and interests of Beach Energy Limited (ACN 007 617 969) ("Beach"):

(i)    as holder of Petroleum Production Licences PPL 204; PPL 205; PPL 212; PPL 220; PPL 224 and PPL 239 ("Beach Production Licences") granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    as the holder of Petroleum Exploration Licences PEL 91; PEL 92; PEL 94; and PEL 107 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    as the holder of Associated Activities Licences AAL 18; AAL 82; AAL 98; AAL 128, AAL 146; AAL 157; and AAL 162 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iv)    as the owner and operator of flow-lines and other infrastructure reasonably necessary for and incidental to the Beach Production Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(v)    as a party to farm in agreements under which Beach has acquired an interest, or has contracted to acquire

A.    an interest in licences granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA); and/or

B.    an interest in resources discovered, utilised or recovered under licences granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(vi)    created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(vii)    for the employees, agents or contractors of Beach to enter the Determination Area to access the rights and interests of Beach and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Determination Area in performance of their duties;

(viii)    of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.

(k)    The rights and interests of Permian Oil Pty Ltd (ACN 104 456 386) (“Permian”):

(i)    as one of the holders of Petroleum Production Licences PPL 213 and PPL 214 (Permian Production Licences) granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    as one of the holders of Petroleum Retention Licence PRL 15 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    as one of the holders of Petroleum Exploration Licences PEL 87, PEL 104, PEL 111 and PEL 424 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iv)    as the owner or operator of flow-lines and other infrastructure reasonably necessary for and incidental to the Permian Production Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(v)    created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(vi)    for the employees, agents or contractors of Permian to enter the Determination Area to access the rights and interests of Permian and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Determination Area in performance of their duties;

(vii)    of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.

(l)    The rights and interests of Victoria Oil Exploration (1977) Pty Ltd (ACN 008 898 431) (“Victoria Oil”):

(i)    as one of the holders of Petroleum Production Licences PPL 213, PPL 214 and PPL 237 (Victoria Oil Production Licences) granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    as one of the holders of Petroleum Retention Licence PRL 15 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    as the holder of Petroleum Exploration Licence PEL 88 and as one of the holders of Petroleum Exploration Licences PEL 87, PEL 94, PEL 104, PEL 111, PEL 115, PEL 182 and PEL 424 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iv)    as the owner or operator of flow-lines and other infrastructure reasonably necessary for and incidental to the Victoria Oil Production Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(v)    created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(vi)    for the employees, agents or contractors of Victoria Oil to enter the Determination Area to access the rights and interests of Victoria Oil and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Determination Area in performance of their duties;

(vii)    of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.

(m)    The rights and interests of Stuart Petroleum Pty Ltd (ACN 059 146 226) (“Stuart Petroleum”):

(i)    as one of the holders of Petroleum Production Licences PPL 203, PPL 207, PPL 208, PPL 211 and PPL 215 and as the holder of Petroleum Production Licences PPL 209, PPL 217, PPL 218 and PPL 221 (Stuart Production Licences) granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    as the holder of Petroleum Retention Licence PRL 16 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    as the holder of Petroleum Exploration Licence PEL 102, PEL 113 and PEL 516 and as one of the holders of Petroleum Exploration Licences PEL 90 and PEL 93, granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iv)    as the applicant for, and when granted, holder of Petroleum Exploration Licences PEL 288, PEL 289, PEL 290, PEL 331 and PEL 516 to be granted under the Petroleum and Geothermal Energy Act 2000 (SA);

(v)    as the holder of Geothermal Exploration Licences GEL 378, GEL 379, GEL 380, GEL 381, GEL 382, GEL 383, GEL 384, GEL 385, GEL 386, GEL 387, GEL 388 and GEL 389 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(vi)    as the applicant for, and when granted, holder of Geothermal Exploration Licences GEL 393, GEL 394, GEL 395, GEL 396, GEL 397, GEL 398, GEL 399, GEL 400, GEL 401, GEL 402, GEL 403, GEL 404, GEL 405 and GEL 406 to be granted under the Petroleum and Geothermal Energy Act 2000 (SA);

(vii)    as the owner and operator of flow lines and other infrastructure reasonably necessary for and incidental to the Stuart Production Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(viii)    created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(ix)    the employees, agents or contractors of Stuart Petroleum to enter the Determination Area to access the rights and interests of Stuart Petroleum and to do all things necessary and appropriate to exercise those rights and interests in, in the vicinity of, the Determination Area in performance of their duties;

(x)    of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.

(n)    The rights and interests of Stuart Petroleum Cooper Basin Oil Pty Ltd (ACN 130 588 019) (“Stuart Cooper”):

(i)    as defined under the farm in and joint operating agreement with Planet Cooper Basin Pty Limited ACN 139 986 324 (Planet Gas) in Petroleum Exploration Licence PEL 514, which is granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA) and held by Planet Gas;

(ii)    created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    the employees, agents or contractors of Stuart Cooper to enter the Determination Area to access the rights and interests of Stuart Cooper and to do all things necessary and appropriate to exercise those rights and interests in, in the vicinity of, the Determination Area in performance of their duties;

(iv)    of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.

(o)    The rights and interests of Impress (Cooper Basin) Pty Ltd (ACN 101 503 780) (“Impress”) and Springfield Oil and Gas Limited (ACN 096 163 594) (“Springfield”):

(i)    as the holders of Petroleum Exploration Licences PEL 104 and PEL 111 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    as the holders of Associated Activities Licences AAL 99; AAL 100; AAL 151; AAL 156; AAL 165 and AAL 169 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iv)    for the employees, agents or contractors of Impress and/or Springfield to enter the Determination Area to access the rights and interests of Impress and/or Springfield and to do all things necessary or appropriate to exercise those rights and interests in, or in the vicinity of, the Determination Area in performance of their duties;

(v)    of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.

(p)    The rights and interests of Cooper Energy Ltd:

(i)    as the holder of Petroleum Exploration Licences PEL 92 and PEL 93 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    as the holder of Petroleum Production Licences PPL 204, PPL 205, PPL 207, PPL 220 and PPL 224 (“Cooper Production Licences”) granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iii)    as the holder of Associated Activities Licences AAL 18, AAL 82, AAL 98, AAL 128, AAL 146, AAL 157 and AAL 171 granted pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(iv)    created pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(v)    as the owner and operator of flow-lines and other infrastructure reasonably necessary for and incidental to the Cooper Production Licences pursuant to the Petroleum and Geothermal Energy Act 2000 (SA);

(vi)    for the employees, agents or contractors of Cooper Energy Ltd to enter the Determination Area to access the rights and interests of Cooper Energy Ltd and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties; and

(vii)    of access and ingress to and egress from the area of a licence held under the Petroleum and Geothermal Energy Act 2000 (SA) by authorisation of the licence holder.

16.    Subject to Paragraph 5, the relationship between the native title rights and interests in the Determination Area that are described in Paragraph 4 and the other rights and interests described in Paragraph 15 (“the Other Interests”) is that:

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; and otherwise,

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of sections 24IB, 24JA and 24JB of the Native Title Act, do not extinguish them.

(c)    in the Schedule 4 Areas, the native title rights and interests continue to exist but have no effect in relation to the Vesting.

(d)    the native title is subject to extinguishment by:

(i)    the lawful powers of the Commonwealth and of the State of South Australia; and/or

(ii)    the lawful grant or creation of interests pursuant to the Laws of the Commonwealth and the State of South Australia

AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS:

17.    The native title is not to be held in trust.

18.    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.

19.    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 any public works and adjacent land and waters referred to in Paragraph 12 and 13 of this Order;

(c)    to establish the effect on native title rights and interests of any public works referred to in Paragraph 13 of this Order; or

(d)    to determine whether a particular area is included in the description in Paragraph 9 or Schedule 3 of this Order.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Schedules

SCHEDULE 1 – Location of areas comprising the Determination Area

The Determination Area is located wholly within and comprises all land and waters bounded by the following line with the exception of those areas described in Paragraphs 9, 11, 12 and 14.

External Boundary Description

Commencing at the north-western corner of Deposited Plan 84009 Allotment 53, being a western corner of Innaminka Regional Reserve then southerly, easterly and generally south-easterly along the boundaries of the said Allotment 53 to Longitude 140.185112° East; then southerly and generally south-westerly in straight lines connecting the following coordinate points

Then south-westerly in a straight line to the intersection of the south-western boundary of Lake Blanche (Deposited Plan 33310 Allotment 2008) with Longitude 139.453985 East; then generally north-westerly along the said boundary of Lake Blanche to Longitude 139.384583° East; then generally north-westerly and generally south-westerly in straight lines connecting the following coordinate points

Then south-westerly to the centreline of Frome River at Longitude 138.390707° East; then generally south-westerly and north-westerly along the centreline of the said Frome River to its intersection with Latitude 29.712754° South; then north-westerly, northerly and north-westerly in straight lines connecting the following coordinate points

Then northerly in a straight line to the intersection the centreline of Warburton River with Longitude 137.266565° East; then generally north-easterly, south-easterly and easterly along the said centreline of Warburton River to Longitude 138.102550° East, Latitude 27.864510° South; then easterly and north-easterly in straight lines connecting the following coordinate points

Then easterly in a straight line to the point of commencement.

Reference datum

Geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees.

Rivers are reference to 1:250 000 Topographic Data - sourced from Geoscience Australia Series 3.

SCHEDULE 2 - Map of the Determination Area

SCHEDULE 3 – Areas within the external boundaries of the Determination Area which are excluded from the Determination Area because native title has been extinguished

The following areas are agreed to have been excluded from the Determination Area by reason of the fact that native title has been extinguished in those areas:

1.    All roads which have been delineated in a public map pursuant to section 5(d)(ii) of the Crown Lands Act 1929 (SA) or s70(3) or (4) of the Crown Land Management Act 2009 or which have otherwise been validly established pursuant to South Australian Statute or common law as shown in red on the map at Schedule 2.

2.    The following listed land parcels:

Pastoral and Crown Land subject to prior extinguishing tenure

Land within Claim area held under Certificate of Title

SCHEDULE 3 - Map detailing where Native Title exists, Native Title exists but is fully suppressed, and where Native Title does not exist

SCHEDULE 4 - Areas where the non-extinguishment principle applies by reason of a Vesting

REASONS FOR JUDGMENT

1    This application for the determination of native title rights and interests is one of the earliest claims made in South Australia under the Native Title Act 1993 (Cth) (the Native Title Act). The application was lodged on 21 August 1997 to the National Native Title Tribunal under the procedure then in force and subsequently transferred to the Court following the enactment of the Native Title Amendment Act 1998 (Cth).

2    The claim is made over a significant part of the north-eastern region of South Australia on behalf of the claim group known as the Dieri People.

3    It comprises some 47,000 square kilometres in area, with part of its south-eastern boundary extending into the Strzelecki Regional Reserve and part of its western boundary extending into the Lake Eyre National Park. Much of the Determination area comprises flat rocky desert east of Lake Eyre. Towards its south-western tip, just outside the Determination area, sits the town of Marree. It is a country of high temperatures and low rainfall; generally desert country, but also within the wider “Lakes” region of periodic inundation from waters from the north-east, principally into Lake Eyre. Its north-western corner is defined by reference to the course of the Warburton River and its southern boundary is in part adjacent to the Frome River.

4    The Determination area is described in detail in Schedule 1 to the Orders and depicted in the map in Schedule 2.

5    The Dieri People, the State of South Australia, and a range of pastoral, mining and other interests within the Determination area who are parties to the application have come to an agreement about the Orders made today.

6    Before explaining why the Court considers it appropriate to make those Orders under s 87 of the Native Title Act, it is important to stress some important more general matters.

7    The first is that, by the Determination of native title rights and interests over the Determination area, the Dieri People are being recognised on behalf of all the people of Australia as the Aboriginal Peoples who inhabited this country prior to European settlement. The preamble to the Native Title Act recognised, on behalf of all the people of Australia, that the Aboriginal Peoples of Australia variously inhabited this country for many years prior to European settlement, and that they had progressively been dispossessed of their lands. It recorded that by the overwhelming vote of the People of Australia, the Constitution was amended to enable laws such as the Native Title Act to be passed to facilitate recognition of the native title rights and interests of Aboriginal Peoples in their land. The Determination that the Dieri People were and are the traditional owners of the land we are on is a recognition of that status. It is important to emphasise that the Court does not grant that status. It declares that it exists and has always existed at least since European settlement. The Determination is made recognising the existence of native title rights and interests with the consent of the State of South Australia, and all the respondents whose interests might be affected by the orders made today. It is therefore a community recognition of that status.

8    It is also important to note that the Native Title Act by the Preamble recognises that European settlement progressively dispossessed Aboriginal Peoples of their lands, largely without compensation, and in significant respects at least to date without reaching a lasting and equitable agreement with Aboriginal Peoples concerning the use of their lands. The parties have now, as the Native Title Act contemplated, undertaken negotiations which enabled them to reach certainty and to recognise the significance that certain acts made before 1993 when the Native Title Act came into existence have had an extinguishing effect. Those negotiating the resolution of this claim on behalf of the Dieri People and on behalf of the State, as well as the other parties, have no doubt approached the negotiations in good faith to agree upon the Orders made today. Such a task was no doubt a challenging one. The Court should encourage resolution of claims such as the present by giving effect to the agreement of the parties where it is appropriate to do so.

9    However, the Court must be satisfied in terms of s 87 of the Native Title Act, that it should make the Determination of native title by consent as proposed. The Dieri People and the State have together filed the following documents:

1.    Minute of proposed orders and determination of native title by consent;

2.    Submissions of the State and the Dieri People;

10    Section 87 enables the Court to make such a Determination without a hearing under certain conditions. They are:

(a)    the period specified in the notice given under s 66 of the Native Title Act has ended and there is an agreement between all the parties on the terms of a proposed order of the Court in relation to the proceedings (s 87(1)(a));

(b)    the terms of the proposed Determination agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b));

(c)    the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and

(d)    the Court considers that it would be appropriate to make the order sought (ss 87(1A) and (3)).

11    The focus of the Court in considering whether the orders sought are appropriate under s 87 is on the making of the agreement by the parties. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J stated at [36]-[37] that:

The Act [Native Title Act] is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed.

In this context, when the court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229.

12    Therefore, the Court does not need to embark on its own inquiry of the merits of the claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J. See also Smith v State of Western Australia (2000) 104 FCR 494 at [38] per Madgwick J:

State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land.

13    I note also the observations of Reeves J in Nelson v Northern Territory of Australia (2010) 190 FCR 344; [2010] FCA 1343 at [12]-[13]:

It is appropriate to make some comments about the difficult balance a State party needs to strike between its role in protecting the community’s interests, including the stringency of the process it follows in assessing the underlying evidence going to the existence of native title, and its role in the native title system as a whole, to ensure that it, like the Court and all other parties, takes a flexible approach that is aimed at facilitating negotiation and achieving agreement. In Lovett North J commented:

…There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.

The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases.

I respectfully agree with North J in these observations. In my view, it would be perverse to replace a trial before the Court with a trial conducted by a State party respondent and I do not consider that is what is intended by the provisions of s 87 of the Act.

14    I am satisfied that the requirements of s 87 of the Native Title Act have been satisfied in the present case. It is clear that the period specified in the notice given under s 66 has expired, and that the parties have reached an agreement as to the terms of a proposed determination of native title and the Orders made reflect that agreement.

15    The Orders are within the Court’s power because the application is valid and was made in accordance with s 61 of the Native Title Act, the application is for a determination of native title in relation to an area for which there is no approved determination of native title, and the proposed orders comply with ss 94A and 225 of the Native Title Act.

16    It is also appropriate that the Court make the orders sought because all parties are legally represented. The State of South Australia as First Respondent obtained searches of land tenure and mining and other relevant interests to determine the extent of “other interests” within the proposed determination area and provided copies of those searches to all parties, and that information has been taken into account by the parties in reaching their proposed agreed orders.

17    The parties have agreed the nature and extent of interests in relation to the Determination area and those interests are described in Orders 4 to 15. There are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the Application which would otherwise require orders to be made under s 67(1) of the Native Title Act. The State has played an active role in the negotiation of the consent determination. In doing so, it has acted on behalf of the community generally, having had regard to the requirements of the Native Title Act. It has conducted a thorough assessment process, and is satisfied that the determination is justified in all the circumstances.

18    The Court is mindful of the caution appropriate where a declaratory order is proposed to be made involving more than just inter partes property rights. In particular, it is necessary to consider whether all parties likely to be affected by an order have had independent and competent legal representation, whether the rights and interests that are to be declared in the determination are recognised by the law of the Commonwealth or the State which the land is situated, and as noted, that all of the requirements of the Native Title Act are complied with. Those matters have been addressed.

19    The fact that the State, through its legal representation, is sufficiently satisfied as to the proposed evidence of the Dieri People and has considered the interests of the community generally, means the Court could move with some assurance to proceed to make the Determination. In this matter, it is evident that the State has applied a rigorous process to assess the proposed evidence of the claims, broadly in accordance with its document entitled Consent Determinations in South Australia: A Guide to Preparing Native Title Reports (sometimes called the State’s CD Policy).

20    The Court places considerable weight on the joint submission of the Dieri People and of the State of South Australia in the circumstances.

The Evidence

21    Principal evidence in this matter consisted of five documents and other electronic material co-authored by two anthropologists Dr Deane Fergie and Dr Rod Lucas.

22    The Dieri People’s evidence included the preservation evidence of Mrs Irene Warren and Mr Bob Kennedy (claimants) and Mr George Bell (pastoralist) taken on country by the Federal Court and various statements and affidavits from members of the Dieri People and videos of members of the Dieri People describing and demonstrating their traditional laws and customs and maps showing the geographic spread of the evidence.

23    Doctors Deane Fergie and Rod Lucas are consultant anthropologists with considerable professional and academic experience, both generally and with regard to native title. Dr Fergie holds a Senior Lectureship in Anthropology at the University of Adelaide, and is the founder of LocuSAR, an interdisciplinary social analysis and research team at the University of Adelaide. Dr Fergie has prepared native title reports for claims in both South Australia and Victoria. Dr Lucas also holds a Lectureship in Anthropology at the University of Adelaide. He has been a consultant on a large number of cultural heritage surveys and several native title matters, and in these contexts has worked with a number of Aboriginal groups across South Australia. He has assessed connection material for the State in other matters.

24    The conclusions of Drs Fergie and Lucas are based on a comprehensive assessment of the ethnohistorical accounts and the historical records relating to the Determination area, as well as significant fieldwork with contemporary Aboriginal people.

25    That material was assessed by the State (with the assistance of its then in-house anthropologist, Mr Kim McCaul) and by its independent expert, Dr David Martin, who is a founding director of Anthropos Consulting Pty Ltd. Dr Martin has a PhD in Anthropology and has been involved in a large number of native title matters for both claimants and responding parties. He is the co-author of a leading text on native title prescribed bodies corporate and was involved as independent expert adviser in the development of the State’s CD Policy. He has also provided guidance to other States on their guidelines for consent determinations.

26    In June 2011 a conference of experts (the Conference) was held by the Federal Court, convened by the District Registrar and the Deputy District Registrar. As ordered by Mansfield J on 4 March 2011, the Conference was held for the anthropologists to meet together and to determine the extent to which they were agreed upon the matters in dispute in the proceedings and for the purposes of refining other evidence required to be called at the forthcoming trial of the matter that would occur in the absence of agreement between the State and the Dieri People.

27    The Conference considered the extensive material and numerous anthropological reports prepared in this matter. Substantial agreement was reached on nearly all propositions discussed.

28    All of the material submitted by the Dieri People, as well as Dr Martin’s assessments, was reviewed by experienced independent Counsel, Ms Gabrielle Brown. Ms Brown was junior counsel for the State in the De Rose Hill trial relating to an area to the north-west of the current Determination area and has reviewed another assessment under the State’s CD Policy: see De Rose v State of South Australia [2002] FCA 1342; and on appeal De Rose v State of South Australia (2003) 133 FCR 325. Ms Brown was informed of the results of the Conference and, in August 2011, provided a written opinion that a decision by the State to consent to Orders recognising certain native title rights in favour of the Dieri People over the Determination area would be justifiable on the basis of the material before her.

29    A position paper explaining the basis for the State’s view was distributed to all other respondent parties in October 2011.

Consideration

30    It is then necessary to refer to the particularly relevant provisions of the Native Title Act.

31    Section 223 of the Native Title Act defines native title as:

(1)    ..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.

32    Section 223(1) has been considered extensively by the High Court, most notably in Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, and by this Court in Risk v Northern Territory of Australia (2007) 240 ALR 74.

33    A threshold requirement is that the evidence shows that there is a recognisable group or society that presently recognises and observes traditional laws and customs in the Determination area. In defining that group or society, the following must also be addressed:

(1)    that they are a society united in and by their acknowledgement and observance of a body of accepted laws and customs;

(2)    that the present day body of accepted laws and customs of the society is in essence the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; and

(3)    that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.

34    The claimants must show that they still possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.

35    The Dieri People as a group identifies itself as the traditional owner of the Determination area because its members are descended from those who had close ties to this area at sovereignty. It is comprised of individuals who identify as Dieri and who are predominantly descended from people who were similarly identified as Dieri in the earliest records. Included in the group are people whose apical forebears inter-married with Dieri. Through principles of incorporation under Dieri law and custom these people are recognised by others and recognise themselves as Dieri.

36    The contemporary aggregated Dieri People group has apparently evolved from the original landed groups identified with the Determination area is and generally recognised as Dieri as far back as can be ascertained from the ethno–historical record. It is also, on the material, appropriate to accept that the Dieri People compromises people who affiliate with the Dieri language as an intrinsic component of their Dieri identity. It is also supported by the material that contemporary Dieri People observe laws and customs which have evolved from those of the original Dieri. These law and customs include:

•    Principles of recruitment to the group;

•    Identifying with the language;

•    Principles of marriage;

•    Modes of respect of systems of authority;

•    Responsibility for nurturing, teaching and reproducing Dieri ways.

37    In my judgment, the level of detail provided by the Dieri People to identify the native title claim group and its society satisfies the requirements of the Native Title Act, as it has the expert anthropologists.

38    The relevant date of sovereignty for this area is 1788. The State is prepared in this matter to infer connection from the earliest records of contact. That is an appropriate course to adopt.

39    The anthropological reports adopt two approaches to establishing the connection of the current Dieri People with the native title holders at sovereignty. One is by analysing the historic literature relevant to the area and identifying broad correlations between the language groups recorded there with the language group identities of the Dieri People. The other is by way of claimant family histories.

40    The evidence suggests that there are a substantial number of members of the Dieri People whose ancestors going back to first contact and close to the time of sovereignty were demonstrably associated with the Determination area at the time. Further, the evidence from historic ethnography suggests that the other mechanisms by which claimants obtain rights in country, i.e. birth, long-term residence and religious knowledge, are likely to have also been operating at the time of sovereignty. Across the generations this has allowed those whose ancestors were primarily associated with country elsewhere within the domain of the “Lakes” group, to establish connections to the claim area. It is a process that continues today.

41    On the basis of the information contained in the Evidence and for the purposes of the Determination, the State is satisfied that the contemporary native title claimants’ society is directly linked to the native title holders at sovereignty. I agree with that view.

42    The Determination can be made without the necessity of strict proof and direct evidence of each issue as long as inferences can legitimately be made. In consent determination negotiations, it is the State’s policy to focus on contemporary expressions of traditional laws and customs and pay less regard to laws and customs that may have ceased. The State can reasonably infer that such contemporary expressions are sourced in the earlier laws and customs. So can the Court.

43    The Evidence tends to show that much of the behaviour of the Dieri People is regulated or influenced by traditional laws and customs and that there has been continuity of the core features of Dieri society from the past to the present.

44    The evidence of both the ethnohistorical record and the fieldwork of current researchers is that there is a system evident in both the traditional and the contemporary society. Their outward expression has been transformed, but they remain coordinated by beliefs, norms, practices and connections that are distinctly Dieri. Their core referents are persons and place – which contemporary claimants understand in terms of being Dieri persons connected to Dieri places.

45    With respect to the evidence about continued existence of traditional law and custom, Dr Martin states that the analysis concerning composition and laws and customs constituting the group was insightful and anthropologically entirely defensible. There were significant amounts of evidence amongst the material of the contemporary practise of the Dieri people of traditional laws and customs. Further, he could see no evidence of a break in continuity of these laws and customs relating to identity and structure of the group.

46    The materials contained significant evidence of the continued existence of traditional law and custom in relation to, particularly, transmission of knowledge, protection of country, cooking practises and spiritual practises.

47    There is evidence of transmission of knowledge pursuant to a system of traditional law and custom.

48    The Court agrees with the view of the State that the material supports the inference that the pre-sovereignty normative society has continued to exist throughout the period since sovereignty, and whilst there has been inevitable adaptation and evolution of the laws and customs of that society, there is nothing apparent in the Evidence to suggest the inference should not be made that the society today (as descendents of those placed in the area in the earliest records) acknowledges and observes a body of laws and customs which is substantially the same normative system as that which existed at sovereignty.

49    It is a requirement of native title law that the Dieri People must show that they follow traditional laws and customs which are connected to the land, and which give rise to rights and responsibilities in relation to that land. Therefore it is not “connection” to the land in the abstract that must be considered, but the content of the traditional laws and customs, the nature and extent of the connection with the land required under those laws and customs, and the relationship between the laws and customs and rights or interests in land which is important.

50    There is evidence provided in the reports and claimants’ statements of the continuing connection of members of the contemporary Dieri People group with at least a substantial part of the claim area through their laws and customs. Evidence of activities undertaken in and across the claim area include:

•    Travelling over and monitoring land;

•    Visiting, camping and living there;

•    Hunting, fishing and gathering and sharing resources;

•    Making decisions and actively managing, conserving and protecting resources;

•    Managing sites and “old people” things;

•    Spiritual practises;

•    Using Dieri language.

51    There is some evidence of transmission of knowledge and practise among the group about country and connection to the country of the claim area. This includes:

•    Cultural geography;

•    Dreamings;

•    Movement on country;

•    Management of sites;

•    Health of the country;

•    Rules about spiritual transgression;

•    Language associated with the claim area.

52    On consideration of all the material, the Court agrees with the State that the Dieri People claim group has traditional laws and customs which demonstrate a connection to the Determination area.

53    The rights and interests which are be recognised through the Determination are set out in Order 4 of the Determination.

54    These rights are consistent with rights recognised by the Federal Court elsewhere in South Australia. The rights and interests recognised are consistent with the traditional rights and interests that would have been observed previously.

55    The statements and reports in the Evidence provide support for the view that a number of claimants continue to regularly access and move about the Determination area, including for the purpose of camping, hunting and gathering, and that their actions whilst undertaking these activities are to some extent governed by traditional laws and customs. A number of contemporary claimants were born or raised on the claim area, and have lived on parts of the claim area for periods of their life. There is evidence that a number of claimants continue to access the resources of the claim area. People continue to hunt on the claim area, including for kangaroos; they fish along the Cooper Creek and gather bush foods.

56    There is also evidence that some Dieri People continue to have knowledge of traditional practices such as how to prepare and cook game, which has been transmitted to younger generations.

57    Whilst there is no evidence in relation to the continued holding of initiation or like ceremonies on the Determination area, there is evidence of other ritual activities and important meetings or events taking place on the Determination area. While births and deaths today are more often associated with large centres such as Whyalla, Port Augusta or Adelaide, there is evidence of the claimants’ antecedents being born and buried on the claim area. There is also evidence of the importance to Dieri People of protecting their country and its culturally significant sites, and the cultural significance of birthplaces.

58    Exclusive native title rights are not consistent with the traditional laws and customs put forward by the Dieri People, particularly in the contemporary setting, and therefore form no part of the Determination.

59    The Court is satisfied that the native title rights and interests granted arise from the traditional laws and customs of the Dieri People and inferences can be made that they have evolved from the native title rights and interests as they were likely to have been at sovereignty.

60    There is no right or interest within the Determination that would not be recognised by the laws of Australia.

61    Section 225 Native Title Act governs what the Determination must include. The Dieri People and the State submit that the Determination complies with each requirement.

62    The Determination sets out with particularity the area in which native title exists. Orders 9, 11, 12 and Schedule 3 set out all areas excluded from the Determination area because native title has been extinguished. Order 3 of the Determination defines the group of native title holders and the criteria by which they have group membership. I am satisfied that the description in Order 3 reflects the Evidence about relevant ancestors through whom individuals hold rights and interests in land. The Dieri People recently sought to have three further apical ancestors added to the group description. Following consultation with the expert anthropologists, it has been agreed to add one further name, Clara Stewart and I accede to that request.

63    Order 4 of the Determination sets out the nature and extent of the native title rights and interests in the Determination area.

64    Order 15 of the Determination sets out the nature and extent of other interests in the Determination area. This has been the subject of some negotiation between the Dieri People and the State and various respondents.

65    There has been ample opportunity for any other interest-holders in the area to identify themselves and join as parties to the claim.

66    The State’s comprehensive tenure searches have not identified any other relevant interest holders in the Determination area.

67    Order 16 of the Determination describes the relationship between the native title rights in Order 4 and those other rights in Order 15.

68    The majority of the Determination area is covered by non-exclusive pastoral lease.

69    There are no exclusive native title rights in the Determination area.

70    Agreement has been reached between all parties to these proceedings on the terms of the Determination and signed copies of the proposed Determination have been filed with the Court.

71    On the basis of the Evidence, in my view it is appropriate, and within power, for the Court to make orders pursuant to s 87 of the Native Title Act. After the claim was lodged, full notification by the National Native Title Tribunal under s 66 of the Native Title Act (using current tenure data provided by the State) last closed on 1 November 2000. The Court is satisfied that all relevant interest holders in the area have had an opportunity to take part in the proceeding.

72    The South Australian Native Title Services Ltd is the native title service provider for the Determination Area and is a party to the proceedings.

73    The parties who have signed the proposed of Determination of Native Title are:

(1)    The Applicant

(2)    The State

(3)    Australian Wildlife Conservancy

(4)    South Australian Native Title Services Ltd

(5)    Pastoralists per their legal representative, Mellor Olsson

(6)    BHP Billiton Olympic Dam Corporation Pty Ltd

(7)    Beach Energy Ltd

(8)    Senex Energy Limited

(9)    Geodynamics Limited

(10)    Impress (Cooper Basin) Pty Ltd

(11)    Cooper Energy Limited

(12)    Alliance Petroleum Australia Pty Ltd and Others per their legal representative, Kelly & Co

(13)    Telstra Corporation Ltd

(14)    South Australian Apiarists Association Inc

The Determination Area

74    Schedule 1 to the Determination contains a detailed description of the Determination area. Orders 9, 11, 12 and Schedule 3 describe those areas which are excluded from the Determination area because native title has been extinguished.

75    A full tenure history of the claim area was provided by the State, and made available to all the parties to the claim. The State has carried out a detailed analysis of both historic and contemporary tenure which informed the consent determination negotiations. This has allowed the State and the Applicants to agree those areas where native title has been extinguished by prior grant of tenure and to record those areas with specificity in the Determination.

76    In line with decision of the Full Court of the Federal Court in De Rose v State of South Australia (No 3) [2005] FCAFC 137 and subsequent consent determinations in this State, Order 9 of the Determination recognises the extinguishment of native title rights and interests over those parts of the pastoral leases within the Determination area where exclusive possession-style improvements authorised by the pastoral leases have been constructed.

77    Due to disagreement between the parties on whether the Full Court Judgement in De Rose Hill held that all future pastoral improvements occurring after the date of the consent determination extinguish native title, Order 10 of the Determination has been expressed to cover the position until the law in relation to future improvements is settled.

78    Extinguishment of native title rights and interests in the Determination area by reason of the construction of Public Works is provided for in Orders 12 and 13 of the Determination. Those orders provide for native title to be wholly extinguished over Public Works constructed, established or situated, or commenced to be constructed or established, prior to 23 December 1996, and leaves it to Part 2 Division 3, Native Title Act to determine the effect of those Public Works constructed, established or situated after 23 December 1996.

Conclusion

79    The Native Title Act encourages the resolution by agreement of claims for determinations of native title. For the reasons set out above, the Court has made the Determination as it is satisfied that the course is the proper one in all the circumstances.

Associate:

Dated:    1 May 2012