FEDERAL COURT OF AUSTRALIA

Nicholls v State of South Australia [2015] FCA 1407

THE COURT NOTES THAT:

A.    The Applicant lodged the Native Title Determination Application No. SG6024 of 1998 (the Application) with the National Native Title Tribunal on 8 January 1998. 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 agreement as to the terms of a determination of native title to be made in relation to these proceedings. They have filed with this Court pursuant to s 87 of the Native Title Act 1993 (Cth) (the Act) an agreement in writing to seek the making of consent orders for a determination.

C.    The Parties acknowledge that the effect of the making of the determination will be that 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 Native Title Land as defined at paragraph 3 of this Order.

D.    The Parties have reached agreement as to the extinguishing effect of the various tenures granted in the Determination Area for the purposes of the making of consent orders. The Parties agree that native title is extinguished over those parcels set out in Schedule 4 to these Orders.

E.    The Parties have requested that the Court determine these 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 Act;

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

Determination Area

2.    Schedule 1 describes the external boundaries of the Determination Area (the Determination Area).

Areas within the Determination Area where native title exists (Native Title Land)

3.    Subject to items 1, 2, 3 and 4 of Schedule 4, native title exists in the lands and waters described in Schedule 3.

Areas within Determination Area where native title is extinguished

4.    Native title has been extinguished in those areas described in Schedule 4.

5.    The Court notes that the State, the Applicant and the Producers, as defined in the Cooper Basin (Ratification Act) 1975 (SA), have agreed to execute an Indigenous Land Use Agreement (the Yandruwandha Yawarrawarrka Native Title Claim Settlement ILUA) contemporaneously with this Determination the effect of which will be that native title is extinguished over those areas described in Schedule 5 on the dates set out in that Schedule.

Native Title Holders

6.    The Native Title Holders hold the Native Title Rights and Interests in the Native Title Land.

7.    Under the traditional laws and customs of the Yandruwandha and Yawarrawarrka People, the Native Title Holders are those living Aboriginal people who identify as, and are recognised by other Yandruwandha Yawarrawarrka Native Title Holders as Yandruwandha or Yawarrawarrka (or both), because:

(a)    he or she is biologically descended from one or more of the following Yandruwandha Yawarrawarrka apical ancestors:

(i)    Annie (born at Cordillo Downs), mother of Archie Guttie;

(ii)    Clara Nirrpinni, mother of Frank Booth and Alice Miller (nee Booth);

(iii)    Cora the mother of Bob Parker and Nellie Parker;

(iv)    The parents of Flash Ted Bikehandle and Flash Tommy; ;

(v)    Kimi (born at Innamincka) and his wife;

(vi)    Maramundu Jack “The Ripper” Parker;

(vii)    Caroline (born at Cordillo Downs) the mother of Mary Stafford (nee Moore), Jack Moore, Charlie Moore, female twins (Winifried and Freida) and Albert Moore;

(viii)    Brothers Walter Harris(on) and Dick Harrison;

(ix)    The parents of Lilly (whose married name is Parker) and her sister Kathlene (whose married name is George);

(x)    Annie and her husband, who are the parents of Coongie Maggie (born at Coongie Lakes in South Australia);

(xi)    The parents of the sibling set – Billy Parker, Jessy Parker, Peter “Petekin” Parker, and Paddy Parker;

(xii)    The parents of sibling set – Merty George and Merty Johnny and Merty Mick;

(xiii)    Larriken Mick; or

(b)    he or she is biologically descended from such other ancestor who is acknowledged by the Native Title Holders as a Yandruwandha or Yawarrawarrka apical ancestor.

Native Title Rights and Interests

8.    Subject to paragraphs 9, 10 and 11 the nature and extent of the Native Title Rights and Interests in relation to the Native Title Land are non-exclusive rights to use and enjoy, in accordance with the Native Title Holders’ traditional laws and customs, the Native Title Land being:

(a)    the right to access and move about;

(b)    the right to live, to camp and, for the purpose of exercising the Native Title Rights and Interests, to erect shelters and other structures;

(c)    the right to fish;

(d)    the right to hunt;

(e)    the right to gather and use the natural resources of the Native Title Land such as food, medicinal plants, wild tobacco, timber, resin, and stone but excluding those resources referred to in item 2 of Schedule 4;

(f)    the right to share and exchange the subsistence and other traditional resources of the Native Title Land;

(g)    the right to use the natural water resources of the Native Title Land;

(h)    the right to cook and to light fires for domestic purposes but not for the clearance of vegetation;

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

(j)    the right to conduct ceremonies and hold meetings;

(k)    the right to bury Yandruwandha Yawarrawarrka people on Native Title Land;

(l)    the right to teach on the Native Title Land the physical and spiritual attributes of locations and sites;

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

(n)    the right to be accompanied on to the Native Title Land 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 Native Title Land; or

(iii)    people who have rights in relation to the Native Title Land according to the traditional laws and customs acknowledged by the Native Title Holders.

General Limitations

9.    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.

10.    The Native Title Rights and Interests described in paragraph 8 do not confer possession, occupation, use and enjoyment of the Native Title Land on the Native Title Holders to the exclusion of others.

11.    The 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 laws of the State and Commonwealth, including the common law;

For the avoidance of doubt, the native title interest expressed in paragraph 8(g) (the right to use the natural water resources of the Native Title Land) is subject to the Natural Resources Management Act 2004 (SA).

Other Interests & Relationship with Native Title

12.    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)    in relation to the Strzelecki Regional Reserve, the Innamincka Regional Reserve and Malkumba-Coongie Lakes National Park:

(i)    the rights and interests of the Crown of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA) and the Wilderness Protection Act 1992 (SA); and

(ii)    the rights and interests of the public to use and enjoy those Reserves consistent with the National Parks and Wildlife Act 1972 (SA) and the Wilderness Protection Act 1992 (SA);

(d)    in relation to the Innamincka Regional Reserve, the rights of the lessee under Crown Lease 1625/52 granted under section 35 of the National Parks and Wildlife Act 1972 (SA);

(e)    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 Act 1940 (SA), Cooper Basin (Ratification) Act 1975 (SA), Petroleum and Geothermal Energy Act 2000 (SA) and Opal Mining Act 1995 (SA), all as amended from time to time;

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

(g)    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;

(h)    the rights and interests of all parties to the Yandruwandha Yawarrawarrka Native Title Claim Settlement Indigenous Land Use Agreement;

(i)    the rights and interests of Telstra Corporation Limited (ACN 051 775 556):

(i)    as the owner or operator of telecommunications facilities on 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), and the Telecommunications Act 1991(Cth), and the Telecommunications Act 1997 (Cth) including rights:

(1)    to inspect land;

(2)    to install and operate existing and new telecommunications facilities;

(3)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; and

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

(iv)    under any lease, licence, access agreement or easement relating to its telecommunications facilities on the Determination Area including under Lease No. 11486698 of Crown Pastoral Lease No. 2185;

(j)    the rights and interests of Epic Energy South Australia Pty Ltd (formerly Tenneco Gas South Australia Pty Ltd) (Epic):

(i)    as:

(1)    holder of Pipeline Licence No. 1 (PL1) issued pursuant to the Petroleum Act 1940 (SA) on 12 March 1969 and renewed on 27 March 1990 pursuant to the Petroleum Act 1940 (SA) and continuing in force by the operation of clause 2 of the Schedule to the Petroleum and Geothermal Energy Act 2000 (SA); and

(2)    owner of the pipeline the subject thereof by virtue of having been a purchaser of the pipeline (as purchaser is defined in section 16 of the Natural Gas Authority Act 1967 (SA) as amended by the Pipelines Authority (Sale of Pipelines) Amendment Act 1995 (SA) (Sale Legislation) from the former Pipeline Authority of South Australia (PASA, now the Natural Gas Authority of South Australia (NGASA)) pursuant to a Sale Agreement dated 30 June 1995 under the Sale Legislation;

(ii)    where the licensed pipeline was established pursuant to the Natural Gas Authority Act 1967 (SA) and is located within a statutory easement established by section 9 of the Sale Legislation and s 28 of the Sale Legislation provides:

(1)    “The creation of the statutory easement under this Act, or the grant of a pipeline lease, does not affect any native title that may exist in the land to which the easement or lease relates;

(2)    The statutory easement or a pipeline lease under this Act does not derogate from pre-existing rights of Aboriginal people to enter, travel across or stay on land subject to the easement or lease”;

(iii)    the statutory easement entitles Epic, inter alia, to install, maintain and operate the pipeline and to carry out authorised purposes including the installation, operation, inspection, extension, alteration, repair and removal of the pipeline or associated equipment and the carrying out of maintenance work on the pipeline or associated equipment;

(iv)    for Epic, its employees, agents and contractors (or any of them) to enter the Determination Area to access Epic’s rights and interests and to do all things necessary to exercise those rights and interests and perform all obligations in the vicinity of the Determination Area in performance of their duties;

(k)    the rights and interests of the “Producers” as defined in the Cooper Basin (Ratification) Act 1975 (SA):

(i)    as the holders of Petroleum Production Licences (PPL) PPL7, PPL8, PPL9, PPL10, PPL11, PPL12, PPL13, PPL14, PPL15, PPL16, PPL17, PPL18, PPL19, PPL20, PPL22, PPL23, PPL24, PPL25, PPL27, PPL30, PPL31, PPL33, PPL34, PPL36, PPL38, PPL39, PPL40, PPL41, PPL42, PPL43, PPL44, PPL57, PPL58, PPL59, PPL65, PPL69, PPL71, PPL72, PPL73, PPL74, PPL78, PPL79, PPL80, PPL82, PPL85, PPL86, PPL87, PPL88, PPL89, PPL90, PPL92, PPL93, PPL96, PPL97, PPL98, PPL99, PPL100, PPL101, PPL102, PPL103, PPL104, PPL105, PPL106, PPL107, PPL108, PPL109, PPL110, PPL111, PPL113, PPL114, PPL115, PPL116, PPL117, PPL119, PPL120, PPL128, PPL129, PPL130, PPL132, PPL133, PPL134, PPL135, PPL138, PPL139, PPL141, PPL146, PPL149, PPL151, PPL155, PPL159, PPL163, PPL164, PPL166, PPL169, PPL172, PPL173, PPL174, PPL179, PPL181, PPL184, PPL186, PPL188, PPL189, PPL190, PPL192, PPL193, PPL195, PPL196, PPL198, PPL228, PPL231, PPL232, PPL234, PPL235, PPL236 and PPL237 (collectively described as the SACB JV PPLs) granted, regulated or renewed pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) or the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    as the owners and operators of flow-lines and other infrastructure associated with, reasonably necessary for or incidental to the Producer’s enjoyment of the SACB JV PPLs 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) or the Petroleum and Geothermal Energy Act 2000 (SA); and

(iv)     through their employees, agents, contractors or representatives, to enter the Determination Area and do all things necessary to exercise those rights and interests in, or in the vicinity of, the Determination Area in performance of their duties;

(l)    the rights and interests of the holders of:

(i)    PPL26, PPL76, PPL77, PPL112, PPL118, PPL121, PPL122, PPL123, PPL125, PPL131, PPL136, PPL142, PPL147, PPL152, PPL156, PPL158, PPL167, PPL182, PPL187, PPL191, PPL194, PPL197, PPL200, PPL201, PPL206, PPL208, PPL211, PPL215, PPL225, PPL226, PPL227, PPL229 and PPL252 (collectively described as the Other PPLs) granted, regulated or renewed pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA)(repealed) or the Petroleum and Geothermal Energy Act 2000 (SA);

(ii)    Petroleum Retention Licences (PRL) PRL28, PRL29, PRL30, PRL31, PRL111, PRL112, PRL113, PRL114, PRL115, PRL192, PRL193, PRL203, PRL204, PRL205 and PRL206;

(iii)    Petroleum Exploration Licences (PEL) PEL100, PEL513 and PEL570;

(iv)    Pipeline Licences (PL) PL2 (Moomba – Port Bonython), PL5 (Ballera –Moomba), PL9 (South West Queensland – Mettika), PL15 (SA/QLD Border – Kerna), PL17 (Queensland – Moomba) and PL20 (Cook – Merrimelia); and

(v)    Associated Activities Licences (AAL) AAL187, AAL195, AAL196, AAL231, AAL232 and AAL233;

(m)    the rights and interests of the holders of the interests listed in paragraph l) above:

(i)    as the owners and operators of flow-lines and other infrastructure associated with, reasonably necessary for or incidental to the holders' enjoyment of the Other PPLs 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)    created pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) or the Petroleum and Geothermal Energy Act 2000 (SA); and

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

(n)    the rights and interests of the holders of Extractive Mineral Leases (EML) EML4885 and EML5265:

(i)    created pursuant to the Mining Act 1971(SA); and

(ii)    through their employees, agents, contractors or representatives, to enter the Determination Area and do all things necessary to exercise those rights and interests in, or in the vicinity of, the Determination Area in performance of their duties;

(o)    the rights and interests of the Outback Communities Authority:

(i)    under the Outback Communities (Administration and Management) Act 2009 (SA);

(ii)    as an entity exercising statutory powers in respect of land and waters within the Determination Area; and

(iii)    in relation to dedicated land placed under its care, control and management pursuant to the Crown Lands Act 1929 (SA) or the Crown Land Management Act 2009 (SA).

13.    The relationship between the Native Title Rights and Interests in the Native Title Land that are described in paragraph 8 and the other rights and interests described in paragraph 12 (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 the Act or the Native Title (South Australia) Act 1994 (SA), do not extinguish them.

AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS:

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

15.    The Yandruwandha Yawarrawarrka Traditional Land Owners Aboriginal Corporation ICN 3840 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 Act after becoming a registered native title body corporate.

16.    The Applicant (through the prescribed body corporate), the State or any other respondent have liberty to apply on 14 days’ notice to a single judge of the Court for the following purposes:

(a)    to establish the precise location and boundaries of any public works and adjacent land and waters referred to in items 3 and 4 of Schedule 4; or

(b)    to determine the effect on native title rights and interests of any public works as referred to in item 4 of Schedule 4.

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

Schedules

SCHEDULE 1 – Location of and areas comprising the Determination Area

The Determination Area comprises all the land and waters bounded by the following non-contiguous areas:

1.    Section 353, OH(Strzelecki)

2.    Sections 737 and 738, OH(Strzelecki)

3.    The area bounded by the following line:

Commencing at Cameron Corner, being the point of intersection between the state borders of South Australia, Queensland and New South Wales; then generally south westerly in straight lines, connecting the following coordinate points

The latter point being on the south-western boundary of Allotment 2008 in Deposited Plan 33310 (Lake Blanche); then generally north-westerly along the said south-western boundary of Allotment 2008 to Longitude 139.453985 East, Latitude 29.208257 South; then north-easterly in a straight line, to Longitude 139.618635 East, Latitude 29.125470 South.

Then north-easterly along a straight line from the latter coordinate toward the point defined as Longitude 140.194980 East, Latitude 28.108791 South until it intersects the boundary of Section 1479, OH(Strzelecki); then southerly, generally easterly, generally northerly, generally north-westerly and westerly along the western, southern, eastern and northern boundaries of the said Section 1479 to its intersection with a straight line connecting the said coordinate point, Longitude 140.194980 East, Latitude 28.108791 South, with a point on the south-western boundary of Allotment 53 in Deposited Plan 84009 (Innamincka Regional Reserve) intersecting with Longitude 140.185112 East; then northerly along the said line to the intersection of the said south-western boundary of Allotment 53 in Deposited Plan 84009 (Innamincka Regional Reserve) with the said Longitude 140.185112 East; then north-westerly, westerly and northerly along southern and western boundaries of the said Allotment 53 to a north-western corner (Longitude 139.875617 East, Latitude 26.952126 South); then westerly and north-easterly in straight lines, connecting the following coordinate points

Then in a straight line north-easterly to the intersection of the state border between South Australia and Queensland with Longitude 140.001231 East; then easterly along the said state border to Haddon Corner; then southerly along the state border between South Australia and Queensland to the point of commencement.

Reference datum

Geographical coordinates have been provided by the NNTT Geospatial services and geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees.

Watercourses and waterbodies (except Lake Blanche) referenced to 1:250,000 Topographic Mapping Series 3 – sourced from Geoscience Australia.

Use of Coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographical data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE 2 - Map of the Determination Area

SCHEDULE 3 – Land and waters within the Determination Area where native title exists (Native Title Land) – See Annexure A for Mapsheets

SCHEDULE 4 - Land and waters within Determination Area where native title has been extinguished – see Annexure A for Mapsheets

1.    Native Title Rights and Interests have been extinguished over all roads which have been delineated in a public map pursuant to section 5(d)(II) of the Crown Lands Act 1929 (SA) or s 70(3) or (4) of the Crown Land Management Act 2009 (SA) or which have otherwise been validly established pursuant to South Australian statute or common law and shown as road on the maps in Annexure A.

2.    Native Title Rights and Interests do not exist in:

2.1    Minerals, as defined in s 6 of the Mining Act 1971 (SA);

2.2    Petroleum, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA);

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

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

2.5    geothermal energy, as defined in s 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 item 2 and the avoidance of doubt:

2.6    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;

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

2.8    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 s 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.

3.    Native Title Rights and Interests have been extinguished in the areas covered by Public Works (including the land defined in s 251D of the Act) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date.

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

5.    Native Title Rights and Interests have been extinguished over the following listed land parcels:

SCHEDULE 5 - Areas where Native Title is extinguished pursuant to Settlement ILUA – see Annexure A for Mapsheets

1)    Areas where Native Title to be extinguished upon Registration of Settlement ILUA

2)    Areas where Native Title to be extinguished upon issue of Certificate of Title

SCHEDULE 6 – List of Parties

    No: SAD 6024/1998

Federal Court Of Australia

District Registry: South Australia

Division: General

Applicants

Applicant:    MR GUTTIE

Applicant:    MR MOORE

Applicant:    FREDRICK BROWN

Applicant:    THERESA BOTTRELL

Applicant:    AARON PATERSON

Applicant:    ANITA PATERSON

Applicant:    LESLIE HARRIS

Applicant:    FAY NICHOLLS

Respondents

Respondent:    TELSTRA CORPORATION LIMITED

Respondent:    BROOKLANDS PASTORAL COMPANY PTY LTD

Respondent:    DOCE PTY LTD

Respondent:    INNAMINCKA PASTORAL CO PTY LTD

Respondent:    MERTY MERTY PASTORAL CO PTY LTD

Respondent:    MARTIN EDWARD GEORGE RIECK

Respondent:    CHARLES SIMPSON

Respondent:    BEACH ENERGY LIMITED

Respondent:    EPIC ENERGY SOUTH AUSTRALIA PTY LTD

Respondent:    STUART PETROLEUM LIMITED

Respondent:    ALLIANCE PETROLEUM AUSTRALIA PTY LTD

Respondent:    BASIN OIL PTY LTD

Respondent:    BRIDGE OIL DEVELOPMENTS PTY LTD

Respondent:    DELHI PETROLEUM PTY LTD

Respondent:    ORIGIN ENERGY RESOURCES LIMITED

Respondent:    REEF OIL PTY LTD

Respondent:    SANTOS (BOL) PTY LTD

Respondent:    SANTOS LTD

Respondent:    SANTOS (NARNL COOPER) PTY LTD

Respondent:    SANTOS PETROLEUM PTY LTD

Respondent:    VAMGAS PTY LTD

Respondent:    SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC

Respondent:    JOHN GWYNNE HUGHES

Respondent:    PANCHEK PTY LTD

Respondent:    SOUTH AUSTRALIAN NATIVE TITLE SERVICES LTD

Respondent:    STATE OF SOUTH AUSTRALIA

Annexure A – Mapsheets

REASONS FOR JUDGMENT

1    This application for the recognition of the traditional rights and interests of this area of the north eastern corner of South Australia was first lodged in January 1998 under the Native Title Act 1993 (Cth) (the Act). It originally covered an area in the north east of South Australia as well as parts of both Queensland and New South Wales. It overlapped three other native title claims; the Dieri-Yandruwandha native title claim (SAD6017/1998), the Wangkumara claim (QUD6118/1998) and the Dieri Mitha claim (SAD66/1998).

2    The State of South Australia (the State) and the Applicant now submit that orders should be made in this proceeding pursuant to s 87 of the Act in terms of the attached proposed Consent Determination.

3    The Application was amended in 1999 to alter the claim boundaries and to change the name of the claim from the Yandruwandha Native Title Claim to the Yandruwandha Yawarrawarrka Native Title Claim. These changes resolved overlaps with the Dieri-Yandruwandha native title claim and the Wangkumara claim. The overlap with the Dieri Mitha claim was resolved when the Dieri Mitha claim was later dismissed.

4    More recently, by consent of all the parties, the Court has made an order slightly changing the boundaries of the area being covered to match the description of the external boundary of the application area matching the description of the external boundary of the Determination Area in the proposed Consent Determination. In particular the amendment will clarify that the application area does not include any portion of the township of Moomba. There was some suggested ambiguity arising from the original application as to whether a portion of the town was included in the claim.

5    The area covered by the Application is located in the far north-east corner of South Australia and covers an area of approximately 40,240 square kilometres. It is obviously a vast area. The border between South Australia and Queensland defines the north and eastern boundaries of the area. The area extends across seven pastoral leases and includes the Malkumba-Coongie Lakes National Park, the Innamincka Regional Reserve and a portion of the Strzelecki Regional Reserve. The Application area is located within the Cooper-Eromanga Basins and contains significant oil and gas interests. It adjoins the oil and gas hub of Moomba and includes the historic town of Innamincka.

6    The entire area is extremely arid, with an average rainfall of about 250mm per year. The area includes portion of the Sturt Stony Desert in the north and the Strzelecki Desert in the south. The Cooper Creek runs across the area from the east of Innamincka to the western edge of the Application area. A number of significant waterholes are located along the waterway, including the Cullyamurra waterhole, which the claim group regards as an area of particular significance. The area also includes the Coongie Lakes wetland, which is internationally recognised as a Ramsar wetland of international importance.

7    The Act requires the Court to have regard to a thorough tenure assessment. That has been conducted and agreement has been reached by the parties as to the extinguishing effect of the various tenures granted in the proposed Determination Area for the purposes of the making of consent orders. Under the Consent Determination native title will be recognised over an area of approximately 40,200 square kilometres being about 99.9% of the area claimed. The Consent Determination also records those areas where native title has been extinguished.

8    Before making orders by consent, the Court must have regard to the requirements of the Act.

9    The expression native title, or native title rights and interests, is defined in the Act at s 223 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.

10    As was stated in Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 at [36]-[39]:

Section 223(1) of the NTA has been considered extensively by the High Court, most notably in the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 77 ALJR 356 (Yorta Yorta). Subsequently, several Federal Court Judges have summarised the relevant principles, including in Risk v Northern Territory (2006) FCA 404 (Risk).

The State conducted its assessment of the Applicant’s evidence in light of the State’s CD Policy (which reflects the state of the law post-Yorta Yorta) and subsequent cases.

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 he 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.

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.

11    Section 87 of the Act empowers the Court to make orders by consent for the determination of native title if certain conditions have been satisfied.

12    Relevantly, s 87 applies where:

(1)    agreement is reached between the parties on the terms of an order of the Federal Court in relation to the proceedings (s 87(1)(a)(i));

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

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

(4)    the Court considers it appropriate to make the orders sought (s 87(1A).

13    Section 94A of the Act requires that the determination made must set out details of the matters mentioned in s 225 of the Act.

14    In addition, the Court needs to have regard to the following before making determinations of native title by consent:

(1)    whether all parties likely to be affected by an order have had independent and competent legal representation: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29] (Munn);

(2)    whether the rights and interests that are to be declared in the determination are recognisable by the law of Australia or the State in which the land is situated: Munn at [31]; and

(3)    that all of the requirements of the Act are complied with: Munn at [32].

15    This Court has made several comments in recent times as to the appropriate standards to be applied by parties in deciding whether to resolve claims by agreement and without trial. For instance, in Nelson v Northern Territory of Australia [2010] FCA 1343 at [12]-[13], Reeves J made the following comments:

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.

16    The State has developed a rigorous process for assessing the evidence in native title claims against the requirements of the Act. This process is outlined in the State’s policy document “Consent Determinations in South Australia: A Guide to Preparing Native Title Reports” (the State’s CD Policy). The State, in its application of this process, has taken a more flexible approach to the assessment of evidence than it would if a claim were to proceed to trial. However, the resolution of this claim by consent has also allowed the parties to reach agreement on other matters of importance that will arise as a result of the Determination but are not directly addressed through the court orders.

17    After assessing the evidence presented by the Applicant in accordance with the State’s CD Policy, the State was satisfied that a consent determination is appropriate for the Determination Area as set out in the Consent Determination. Pursuant to the State’s CD Policy, the evidence was provided on a confidential and “without prejudice” basis. That material can however, subject to confidentiality and gender restrictions, be made available to the Court if required to support the contents of these submissions.

18    The evidence in this claim is primarily contained in an expert report prepared by Mr Kim McCaul, an expert anthropologist engaged by the Applicants (the Report) which was submitted to the State in accordance with the State’s CD Policy. The Report annexed genealogical material prepared by Lyn Coad, who was at the time that the Report was prepared, an anthropologist with the South Australian Native Title Services Ltd.

19    The Report’s conclusions are based on a comprehensive assessment of the historical ethnographic literature relating to the claim area and its surrounds, as well as information gathered during interviews with native title claim group members.

20    The Report was assessed by the State with the expert assistance of consultant anthropologists, Drs Rod Lucas and Deane Fergie. A number of issues were raised by the State and a meeting of experts was subsequently held. Following this meeting a supplementary report was prepared by Mr McCaul and provided to the State. This was also assessed with assistance from Drs Lucas and Fergie.

21    The Applicant also provided further material to the State in the form of photographs, recordings of interviews with claimants and video footage showing members of the claim group talking about and undertaking activities on the claim area.

22    The State engaged Counsel to consider all of the material submitted by the Applicant and the assessments prepared by Drs Lucas and Fergie. It was Counsel’s considered opinion that although the case was “borderline”, a decision by the State to consent to orders recognising native title over the Determination Area would be justifiable on the material available to the State.

23    A position paper explaining the basis for the State’s view was distributed to all other respondent parties in July 2015. The other parties to this proceeding are in agreement to the proposed orders being made by consent and signed Minutes of Consent have been filed with the Court.

24    It is therefore the case that the Court has appropriate material to be satisfied that it should make orders in terms of the proposed Consent Determination.

25    It is important to explain in a little more detail what the evidentiary material shows.

26    The earliest records of contact with Europeans in the Determination Area date from the 1860s. The evidence demonstrates that at that time, there was a body of laws and customs shared by speakers of a common language in the claim area. Yandruwandha and Yawarrawarrka are identified in the evidence as dialects of this language. A number of other groups are also named in the early ethnographic material in relation to the claim area. The evidence indicates that these were most likely small localised groups closely connected with Yandruwandha and/or Yawarrawarrka speakers and that these other groups do not imply the presence of a distinct community or society of people, separate from the ancestors of the current claimants.

27    The evidence describes features of the early society as including:

    a common language;

    exogamous matri-moieties called tiniwa and kulpuru;

    matri-totem called kamiri;

    a land tenure system focussed on one or more patrilineally inherited nari sites;

    “increase” ceremonies centred on appropriate nari sites and involving men with both patrilineal and matrifilial associations to those sites;

    initiatory ceremonies involving only circumcision and wilyaru rites; and

    a common system of preferred marriage arrangements.

28    The contemporary society is described in the Report as comprising a number of family groups defined by reference to descent from particular ancestors from the claim area (likened in the Report to Sutton’s “families of polity”) that are united in their observance and acknowledgement of a common set of laws and customs. These family groups are said to be the primary means by which rights and interests and cultural knowledge are transmitted and policed by the claimants. They are also the means by which members of the group claim form a primary association with particular parts of the claim area. Everyone in the group is identified as kin.

29    Membership of the group is established through cognatic descent from a set of recognised ancestors from the claim area.

30    The Applicant’s expert opined that the broadening of responsibilities for land from patrilineally inherited nari sites to the broader/dialect group country occurred in accordance with traditional laws and customs, although provided limited evidence as to how this process of transition occurred.

31    While the State’s experts were concerned with the lack of evidence regarding the systematic transition from the traditional system to the contemporary situation of cognatic descent, ultimately they did not dispute the conclusion of the Applicant’s expert. Based on their knowledge of the region, the State’s experts indicated a view that the social organisation of the Yandruwandha Yawarrawarrka people is likely to have transformed along similar lines to other Aboriginal groups in the ‘Lakes’ region.

32    The evidence suggests that following European settlement of this area there was widespread displacement of the Yandruwandha and Yawarrawarrka people from the area, resulting in a significant population decline, and residential movement away from traditional estates to Innamincka Township and key pastoral stations. The State accepts, for the purposes of a native title consent determination, that the shift in the traditional land tenure system to accommodate cognatic descent is an adaptation that has its basis in traditional law and custom brought about in response to the impacts of European settlement of the area.

33    Although the traditional system of laws and customs observed by the group has become simplified in many respects, the Court accepts that the evidence provides sufficient basis to accept that there continues to be, amongst Yandruwandha and Yawarrawarrka people, a commonality of laws, customs, spiritual matters and kinship such that they form a recognisable society for the purpose of a native title consent determination.

34    It is satisfied that the proposed Consent Determination describes, in accordance with the evidence, those persons who are members of the native title holding group, and that the description is sufficient to identify the native title holding group and its society, and satisfies the requirements of the Act.

35    The date of acquisition of sovereignty for this area was 1788. However first records of contact with Europeans in the Determination Area date from the 1860s. There is evidence that, at that time, ancestors of the Yandruwandha Yawarrawarrka people occupied the Determination Area. In accordance with the parties’ common sense agreement, it is appropriate to assume that the ancestors of the people living in the area in the 1860s also occupied and held rights in the Determination Area at sovereignty.

36    The evidence shows that, although much of the detail of the traditional system of laws and customs in the claim area has been lost, there has been a continuity of some key traditional features of Yandruwandha Yawarrawarrka society from the past to the present.

37    This includes a continued sense of obligation to country and a common belief in spirits and spiritual powers that inform how Yandruwandha Yawarrawarrka people behave and what is considered appropriate conduct in relation to the land (e.g. not touching artefacts, challenging people who are threatening heritage sites, looking after gravesites). There is evidence that such beliefs and practices have existed since traditional times.

38    The emphasis in relation to responsibilities for land has shifted from the traditional system of patrilineally inherited nari estate sites to the broader dialect/language group. However, there is evidence that some individuals continue to be recognised as having special knowledge of, and responsibility for, particular areas. The Applicant’s expert considers that this is a “partial continuation” of the traditional situation in which small dialect groups were associated with particular parts of a wider country. The State’s experts accept that the association of particular families with different areas of the claim is suggestive of connections that reflect early traditions and that this accords with similar processes that have gone on in adjacent groups.

39    The experts also generally agree that other contemporary laws and customs detailed in the Report are likely continuations of pre-sovereignty tradition. Examples include; name avoidance of the dead, acknowledgement of male and female domains of knowledge and land, significance attached to initiation sites and the status accorded to initiated men.

40    There is evidence of knowledge and use of natural resources across the claim area which the State accepts constitutes a body of customary knowledge. The evidence supports the conclusion that this knowledge has been learnt by the claimants from their parents, grandparents and elders, and as such demonstrates a continuous process of transmission of knowledge which the State is prepared to infer has continued from sovereignty.

41    The evidence demonstrates that, despite some cultural losses that have occurred since sovereignty, there is sufficient basis to accept for the purposes of a consent determination that there remains a body of traditional law and custom that has continued to be observed ‘substantially uninterrupted’ since sovereignty.

42    There is evidence of a contemporary connection between the Yandruwandha Yawarrawarrka claimants and the claim area.

43    The following activities, laws and customs indicate a continuing physical and spiritual connection with the claim area:

    traditional burials on the claim area, some having occurred in recent years;

    treatment of ancestral graves on the claim area with respect;

    the treatment of other significant sites and objects, such as artefacts, with respect;

    the association of spirits and negative consequences with disrespect for sites on the claim area;

    protection of sites from damage by others;

    a continued religious engagement with the land;

    rules relating to men or women avoiding particular sites or activities at particular sites which are associated with the opposite sex, including initiation sites (although only a handful of such sites are known, initiation not having been practiced in the area for 70 years); and

    regular visitation of the claim area, and camping.

44    The claimants’ spiritual connection to the claim area is evidenced by the claimants’ expressed feelings of obligations to ancestors, the reciprocal relationships between land, spirits and people, and the need to behave appropriately towards each other and the land. While the evidence indicates that members of the group have limited knowledge of specific sacred sites, there is a sense of sacredness for everything “ancestral” or locations of traditional heritage significance, a sense of being influenced by the lands (and the spirits in the lands) to act in certain ways, an emotional connection to the land and having responsibilities to act appropriately in relation to the land.

45    While most of the claimant group members have dispersed from the claim area, there is evidence of ongoing physical connection. Nine of the original claimants were born in the claim area, and all claimant families have significant ancestors born on-country. There is evidence of claimants regularly visiting the claim area to fish, collect bush foods, and to attend and care for burial sites. Some claimants have worked on pastoral stations, one as a ranger in the Innamincka Regional Reserve and many have participated in multiple Aboriginal Heritage surveys in the claim area.

46    While some specific traditional knowledge has been lost, the Court is satisfied that there is sufficient evidence to conclude, for the purpose of them reaching an agreement and the Court making an order under s 87 of the Act, that the Yandruwandha Yawarrawarrka presently observe a system of laws and customs and that according to those laws and customs the Yandruwandha Yawarrawarrka have a relevant connection to the claim area sufficient to ground a consent determination of native title.

47    The rights and interests to be recognised are set out at paragraph 8 of the proposed Consent Determination agreed by the parties.

48    The rights and interests recognised are consistent with the rights and interests that would have been observed traditionally. They are also consistent with rights recognised by the Federal Court elsewhere in South Australia.

49    There is evidence that antecedents of the claim group, as well as contemporary claimants and their families, have lived and/or spent periods of time on the claim area, including at Innamincka, Cullyamurra, Moomba, Coongie Lakes and at various stations across the claim area. There is evidence that a number of claimants continue to regularly access and move about the claim area, including for the purpose of camping, fishing and gathering, and that their actions whilst undertaking these activities are subject to traditional laws and customs including avoidance of particular sites on a gender basis and protection of and respect for ancestral sites.

50    There is evidence of resource use on the claim area including the following:

    collection and use of medicinal plants;

    fishing and hunting;

    collection and use of Pitjuri (native tobacco)

    collection and use of wild orange seed and other bush foods; and

    making of boomerangs and fishing nets from traditional resources.

51    There is also evidence of the transmission of knowledge about the Determination Area by elders to younger members of the group.

52    There is some evidence that known relatives of contemporary claimants are buried on the claim area.

53    There is therefore a proper basis to accept, in the context of a consent determination, that the native title rights and interests claimed arise from the claimants’ traditional laws and customs and that they have evolved from the native title rights and interests as they were likely to have been at sovereignty.

54    There are formal requirements in s 225 of the Act which govern what the Consent Determination must include. The Applicant and the State submit that the Consent Determination complies with each requirement of that section. The Court accepts those submissions.

55    The Consent Determination describes the external boundaries of the Determination Area (paragraph 2), and sets out with particularity those areas where native title exists (Native Title Land) (paragraph 3), and those areas within the Determination Area where native title is extinguished (paragraph 4).

56    For the purpose of s 225(a) of the Act, paragraph 7 of the Consent Determination defines the group of native title holders and the criteria by which they have group membership.

57    For the purpose of s 225(b) of the Act, paragraph 8 of the Consent Determination sets out the nature and extent and of the native title rights and interests in the Determination Area. Paragraphs 9 to 11 set out the general limitations on their exercise.

58    For the purpose of s 225(c) of the Act, paragraph 12 of the Consent Determination sets out the nature and extent of other interests in the Native Title Land. The content of this paragraph has been informed through tenure searches undertaken by the State and input from other respondent parties to the claim. There has been ample opportunity for any other interest-holders in the area to identify themselves and join as parties to the claim. The State’s comprehensive tenure searches have not identified any other relevant interest holders in the Determination Area.

59    For the purpose of s 225(d) of the Act, paragraph 13 of the Consent Determination describes the relationship between the native title rights in Paragraph 8 and those other rights in paragraph 12.

60    For the purpose of s 225(e) Act, the native title rights and interests recognised in the Determination are non-exclusive.

61    As noted, agreement has been reached between the parties to these proceedings on the terms of the proposed Consent Determination and signed copies of that Determination have been filed with the Court.

62    This includes the South Australian Native Title Services Ltd, who is the native title service provider for the Determination Area, Telstra Corporation Limited, Epic Energy South Australia Pty Ltd and a number of represented pastoral and mining interests. The Court notes that all of the parties to the Determination have had independent and competent legal advice in the proceeding.

63    On the basis of the evidence it is appropriate for the Court to make the proposed orders pursuant to s 87.

64    Also, as recorded earlier, 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 current 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 Consent Determination. These are recorded in Schedule 5 to the Consent Determination.

65    The Court further notes that, immediately following the making of the Determination, the State, the Producers as defined in the Cooper Basin (Ratification) Act 1975 (SA) (the Producers) and the nominated native title holding body will execute the Yandruwandha Yawarrawarrka Settlement Indigenous Land Use Agreement.

66    Under the terms of this ILUA the Yandruwandha Yawarrawarrka people have consented to surrender their native title rights over a number of land parcels in Innamincka which are described at Schedule 5 to the Consent Determination. The surrender and consequent extinguishment of native title over those areas will take place on the dates recorded in that Schedule, being for some allotments the date upon which the ILUA is registered and for other allotments, the date upon which certificates of title are issued for the land.

67    The Yandruwandha Yawarrawarrka Settlement ILUA agrees the validity of future acts, if any, which may have been done invalidly in the Determination area, and provides for a process, as an alternative to Division 3 Part 2 of the Act, pursuant to which the State may undertake certain future acts on Native Title Land once the ILUA has been registered.

68    In addition, the Yandruwandha Yawarrawarrka Settlement ILUA addresses the provision of compensation in full and final settlement of the State’s existing compensation liability pursuant to the Act in relation to the Determination Area.

69    The Act encourages the resolution by agreement of claims for determinations of native title. For the reasons set out above, the State and the Applicant consider that the Consent Determination, in conjunction with the Yandruwandha Yawarrawarrka Settlement ILUA, is appropriate and should be made in this proceeding. By signing the Minute of Consent Determination of native title, the other parties to the proceeding have indicated their agreement. For the reasons given, the Court makes the Determination of native title.

Associate:

Dated:    16 December 2015