Federal Court of Australia

Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (Port Augusta Proceeding) (No 5) [2021] FCA 1132

ORDERS

Preamble

A.    Native Title Determination Application No SAD 6011 of 1998 (Application) was first lodged by the Barngarla People with the National Native Title Tribunal on 4 April 1996, and was referred to the Federal Court of Australia on 30 September 1998. A detailed history of the Application is set out in the reasons of this Court published on 22 January 2015 in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; 325 ALR 213 (Croft).

B.    In 2012 the Application was split into two parts:

(a)    the Port Augusta area; and

(b)    the remainder of the Application which was subject of the proceedings in Croft (Part 1).

C.    This allowed for the Port Augusta area, which was subject to overlapping claims, to be dealt with separately from Part 1.

D.    On 23 June 2016 a determination by consent was made over Part 1 of the Application. By the end of August 2019, all remaining overlaps for the Application were resolved creating the remaining outstanding boundary of this Application (Part 2).

E.    The applicant and the first respondent (the State) have negotiated in good faith about Part 2 and with full advice from their legal representatives, including counsel, and experts, and have reached a compromise which is set out in an Indigenous Land Use Agreement called the Barngarla Determination ILUA (No 2) (ILUA) and in this Determination of native title. This Determination will take effect upon the registration of the ILUA under Div 3 of Pt 2 of the Native Title Act 1993 (Cth) (Native Title Act).

F.    The applicant and the State have entered into the ILUA, which, among other matters:

(a)    contains the agreement of the Applicant and the State that the vesting of Adjacent land and Subjacent land in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA) is a valid act to which the non-extinguishment principle applies. The effect of registration of the ILUA is that, pursuant to s 24EBA of the Native Title Act and s 32B of the Native Title (South Australia) Act 1994 (SA), the validity of the vesting will be confirmed, and any extinguishing effect of the vesting will be changed so that the non-extinguishment principle will apply to the vesting of Adjacent land and Subjacent land which is within the Determination Area; and

(b)    addresses parcels which, in the course of negotiating the tenure schedules, were agreed by the parties to be included into an Indigenous Land Use Agreement.

G.    The parties acknowledge that the effect of the Determination coming into effect 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 Native Title Land.

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:

THE COURT ORDERS THAT:

1.    There be a determination of native title in the Determination Area in the terms set out at paragraphs 5 to 20 below (the Determination).

2.    The Determination will take effect upon the ILUA being registered on the Register of Indigenous Land Use Agreements.

3.    In the event that the ILUA is not registered on the Register of Indigenous Land Use Agreements within eight months of the date of this Order, or such later time as the Court may order, the matter is to be listed for further directions.

4.    The applicant, the State or any other respondent have liberty to apply on 14 days’ notice to a single judge of the Court:

(a)    if that party considers it unlikely that the ILUA will be finalised and registered on the Register of Indigenous Land Use Agreements within eight months of the date of this Order;

(b)    to establish the precise location and boundaries of any Public Works and adjacent land and waters referred to in items 2 or 3 of Schedule 5;

(c)    to determine the effect on native title rights and interests of any Public Works as referred to in item 3 of Schedule 5.

THE COURT DETERMINES THAT:

Interpretation & Declaration

5.    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 Pt 15 of the Native Title Act;

(b)    “Adjacent land” and “Subjacent land” have the meaning given to those terms in the Harbors and Navigation Act 1993 (SA);

(c)    “Native Title Land” means the land and waters referred to in paragraphs 7, 8, and 9 of these Orders; and

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

Determination Area

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

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

7.    Subject to items 1, 2, 3, 4 and 5 of Schedule 5, native title exists in the lands and waters described in Schedule 3.

8.    Section 47A of the Native Title Act applies to those parcels or parts of parcels described in Part 1 of Schedule 4 and s 47B of the Native Title Act applies to those parcels or parts of parcels described in Part 2 of Schedule 4. Subject to items 1, 2, 3, 4 and 5 of Schedule 5, the prior extinguishment of native title rights and interests over those areas is disregarded and native title exists in those parcels or parts of parcels.

9.    The Court notes that the State and the applicant have entered into the ILUA, the effect of which is that upon it being registered on the Register of Indigenous Land Use Agreements, native title will be recognised as existing in Adjacent land and that portion of Subjacent land that lies within the Determination Area, excluding those areas identified in Schedule 5, which is vested in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA) and which are identified on the maps at Schedule 2 and described in Schedule 6(1).

Areas within Determination Area where native title does not exist

10.    Native title has been extinguished in those areas described in Schedule 5.

11.    Upon the ILUA being registered on the Register of Indigenous Land Use Agreements, native title will be extinguished in those areas described in Schedule 6(2).

Native Title Holders

12.    Under the relevant traditional laws and customs of the Barngarla People the group of persons holding the common or group rights are those Barngarla People:

(a)    who are related by means of the principle of descent to the following Barngarla apical ancestors:

(i)    the siblings Percy Richards and Susie Richards;

(ii)    Maudie Blade who is the mother of Phyllis Croft;

(iii)    George Glennie and Mary Glennie;

(iv)    the siblings Bob Eyles and Harry Croft;

(v)    Jack Stuart;

(vi)    Arthur Davis (also known as King Arthur) and his sons, Andrew Davis, Jack Davis, Stanley Davis and Percy Davis; and

(b)    who have a connection with the Determination Area in accordance with the traditional laws and customs of the Barngarla People; and

(c)    who identify as a Barngarla person and who are accepted by the Barngarla People as a Barngarla person.

(Collectively, the Native Title Holders)

Rights And Interests

13.    Subject to paragraphs 14, 15 and 16 the nature and extent of the native title rights and interests in the Native Title Land are non-exclusive rights to use and enjoy, in accordance with the Native Title Holders’ traditional laws and customs, those lands and waters, being:

(a)    The right to live on, use and enjoy the land and waters;

(b)    The right to make decisions about the use and enjoyment of the land and waters by those Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders;

(c)    The right of access to the land and waters;

(d)    The right to control the access of other Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders to the land and waters;

(e)    The right to use and enjoy resources of the land and waters but excluding those resources referred to in item 1 of Schedule 5;

(f)    The right to control the use and enjoyment of resources on the land and waters by other Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders but excluding those resources referred to in item 1 of Schedule 5;

(g)    The right to maintain and protect places of importance under traditional laws, customs and practices on the land and waters; and

(h)    The right to conduct burial ceremonies on the land and waters.

General Limitations

14.    The native title rights and interests set out at paragraph 13 are for personal, domestic and communal use but do not include the right to trade in, or the commercial use of, the Native Title Land or the resources from it.

15.    For the avoidance of doubt, the native title rights and interests described in paragraph 13 do not confer possession, occupation, use and enjoyment of the land and waters on the Native Title Holders to the exclusion of others.

16.    The native title rights and interests set out at paragraph 13 are subject to and exercisable in accordance with:

(a)    the traditional laws and customs of the Native Title Holders;

(b)    the valid rights of other interest holders in the Native Title Land in accordance with paragraphs 17 and 18 of this Order; and

(c)    the valid laws of the State and Commonwealth, including the common law.

Other Interests & Relationship with Native Title

17.    The nature and extent of other interests in the Native Title Land are:

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

(b)    any subsisting public right to fish in the Determination Area;

(c)    the public right to navigate in the Determination Area;

(d)    where applicable, the international right of innocent passage over waters affected by the Determination;

(e)    the rights and interests of the Crown in right of the State of South Australia pursuant to the Harbors and Navigation Act 1993 (SA);

(f)    the interests of the registered proprietors of the lands set out in Schedule 4;

(g)    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), the Crown Lands Act 1929 (SA), the Mining Act 1971 (SA), the Petroleum and Geothermal Energy Act 2000 (SA) and the Opal Mining Act 1995 (SA), all as amended from time to time;

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

(i)    the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;

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

(i)    as the owner or operator of telecommunications facilities within the Native Title Land;

(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:

A.    to inspect land;

B.    to install, occupy and operate telecommunications facilities; and

C.    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

(iii)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Native Title Land in performance of their duties; and

(iv)    under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities within the Native Title Land;

(k)    the rights, interests and entitlements of SA Power Networks (a partnership of Spark Infrastructure SA (No.1) Pty Ltd, Spark Infrastructure SA (No.2) Pty Ltd, Spark Infrastructure SA (No.3) Pty Ltd, CKI Utilities Development Limited and PAI Utilities Development Limited) and its related and successor entities, including its rights, interests and entitlements:

(i)    to exercise its entitlements and discharge its obligations as the owner and/or operator of electricity infrastructure (as defined in the Electricity Act 1996 (SA)) (Electricity Act) and telecommunications facilities and infrastructure within the Determination Area including but not limited to existing infrastructure identified in Schedule 7 (Existing Infrastructure);

(ii)    to exercise its entitlements and discharge its obligations as the holder of a licence under the Electricity Act and/or as an electricity entity under the Electricity Act;

(iii)    to exercise its entitlements and discharge its obligations as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(iv)    to install new electricity and telecommunications infrastructure on the Determination Area (New Infrastructure) and modify, maintain and repair Existing Infrastructure;

(v)    under easements, leases or licences (whether registered, unregistered, statutory or otherwise) relating to Existing Infrastructure or New Infrastructure on the Determination Area including but not limited to the Easements identified in Schedule 7 (Easements);

(vi)    to provide its employees, agents or contractors with access to Existing Infrastructure, New Infrastructure and the Easements on the Determination Area; and

(vii)    to the extent permitted by law, to restrain any person from performing any act, or compel any person to perform any act, for the purposes of ensuring that SA Power Networks complies with its obligations under any law, including, but not limited to, excluding any person from entering an area containing Existing Infrastructure or New Infrastructure for the purposes of maintaining the safety of any person and the security and protection of such infrastructure;

(l)    the rights and interests of the Port Augusta City Council:

(i)    under the Local Government Act 1934 (SA) or the Local Government Act 1999 (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).

(m)    the rights and interests of the holder from time to time of Pipeline Licence No. 2 (PL 2), who at the date of this determination is comprised of Santos Limited, Santos Petroleum Pty Ltd, Santos (BOL) Pty Ltd, Vamgas Pty Ltd, Reef Oil Pty Ltd, Alliance Petroleum Australia Pty Ltd, Bridge Oil Developments Pty Ltd, Delhi Petroleum Pty Ltd, Beach Energy (Operations) Limited, Basin Oil Pty Ltd and Santos (NARNL Cooper) Pty Ltd; and

(n)    the rights and interests of BHP 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)    in the Variation Deed amending the Indenture and ratified by the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011 (SA), and rights, powers, privileges and interests comprised in, conferred under or in accordance with or pursuant to that Variation Deed amending the Indenture and the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011 (SA); and

(iii)    for its employees, agents or contractors to enter the Determination Area to access BHP 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.

18.    The relationship between the native title rights and interests in the Native Title Land that are described in paragraph 13 and the other rights and interests that are described in paragraph 17 (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;

(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 Native Title Act or the Native Title (South Australia) Act 1994 (SA), do not extinguish them;

(c)    in relation to the land and waters set out in Schedule 4 the non-extinguishment principle applies in relation to the grant or vesting of the land, or the creation of any other prior interest in the land.

AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS:

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

20.    On this Determination coming into effect, Barngarla Determination Aboriginal Corporation RNTBC (ICN 8603) is to be the prescribed body corporate for the purpose of s 57(2) Native Title Act, and shall perform the functions mentioned in s 57(3).

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

SCHEDULE 1 – Determination Area

The Determination Area is located wholly within and comprises all land and waters bounded by the following line:

Commencing at the south-eastern-most corner of the suburb of Port Augusta West (The South Australian Government Gazette, 17 February 1994, Page 482 and amended by the South Australian Government Gazette 25 September 2014, Page 5951); then generally westerly, south-westerly, generally northerly and generally north-easterly along the southern and western boundaries of the suburb of Port Augusta West to its intersection with the centreline of the Stuart Highway road reserve; generally south-easterly along the centreline of the Stuart Highway road reserve to its intersection with the prolongation south-westerly of the centreline of Section 261, Hundred of Copley; north-easterly along said prolongation; generally north-easterly and generally easterly along the said centreline of Section 261, to its intersection with the eastern boundary of the suburb of Port Augusta West; generally southerly and south-easterly along the eastern boundary of the suburb of Port Augusta West to its intersection with Latitude 32.471059 South; then east in a straight line to its intersection with the centreline of Spencer Gulf [being along a portion of the eastern portion of the external boundary of the Barngarla Native Title Claim Consent Determination (SCD2016/001)].

Then easterly in a straight line to the north-western-most corner of the suburb of Port Augusta (The South Australian Government Gazette, 17 February 1994, Page 482 and amended by the South Australian Government Gazette 10 July 2014, Page 3147); generally easterly and generally south-easterly along the northern boundary of the suburb of Port Augusta to its intersection with the prolongation north-easterly on the north-western boundary of Section 573, Hundred of Davenport;; south-westerly along said prolongation, and along the north-western boundaries of Sections 573, 574, 575, 576, 577 and 578, Hundred of Davenport and Allotments 702, 701 and 700 of Filed Plan 186402 to the western-most corner of said Allotment 700; south-westerly in a straight line to the northern-most corner of Allotment 2 of Deposited Plan 27656; south-easterly along the north-eastern boundary of said Allotment 2 to the eastern-most corner of said Allotment 2; south-easterly in a straight line to the northern-most corner of Allotment 100 of Deposited Plan 43677; south-westerly along the north-western boundaries of said Allotment 100 and Allotment 1 of Deposited Plan 94260 to the north-western-most corner of said Allotment 1; south-westerly in a straight line to the northern-most corner of Allotment 42 of Deposited Plan 94260; south-westerly along the north-western boundaries of Allotments 42, 40, 39, 38, 37 and 43 of Deposited Plan 94260, Allotment 102 of Filed Plan 207262 and Sections 1113 and 1114, Hundred of Davenport; south-westerly and south-easterly along the north-western and south-western boundaries of Allotment 1 of Deposited Plan 2848; south-easterly along the south-western boundaries of Allotments 2 and 3 of Deposited Plan 2848 to the southern-most corner of Allotment 3 of Deposited Plan 2848; south-easterly in a straight line to the western-most corner of Allotment 12 of Deposited Plan 2848; south-easterly along the south-western boundaries of Allotments 12 and 13 of Deposited Plan 2848, Allotment 1001 of Filed Plan 27553, Allotments 16 and 17 of Deposited Plan 2848 and Allotment 19 of Deposited Plan 5261 to the south-western-most corner of Allotment 19 of Deposited Plan 5261; south-easterly in a straight line to the western-most corner of Allotment 18 of Deposited Plan 5261; south-easterly along the south-western boundaries of Allotments 18, 1, 2, 3 and 4 of Deposited Plan 5261 to the south-western-most corner of said Allotment 4; south-easterly along the prolongation south-easterly of the south-western boundary of said Allotment 4 to its intersection with the north-western boundary of Allotment 95 of Deposited Plan 634; north easterly along the north-western boundaries of said Allotment 95 and Community Plan 25390 to the northern-most corner of Community Plan 25390; north-easterly in a straight line to the north-western-most corner of Allotment 588 of Filed Plan 186290; north-easterly along the north-western boundaries of said Allotment 588 and Allotment 2 of Deposited Plan 2355 to the northern-most corner of said Allotment 2; north-easterly in a straight line to the western-most corner of Allotment 3 of Deposited Plan 2355; generally north-easterly along the north-western boundaries of Allotments 3, 4, 5, 6, 7 and 8 of Deposited Plan 2355 to the northern-most corner of said Allotment 8; north-easterly in a straight line to the western-most corner of Allotment 17 of Deposited Plan 1181; north-easterly along the north-western boundaries of Allotments 17, 16, 15 and 14 of Deposited Plan 1181, Allotments 73 and 74 of Deposited Plan 7111, Allotment 11 of Deposited Plan 1181, Allotments 75 and 76 of Deposited Plan 7111, Allotments 101 and 102 of Deposited Plan 14085, Allotments 77 and 78 of Deposited Plan 7111, Allotments 4, 3 and 2 of Deposited Plan 1181 and Community Plan 24402 to the northern-most corner of said Community Plan 24402; north-easterly in a straight line to the western-most corner of Section 1200, Hundred of Davenport; north-easterly and south-westerly along the north-western and south-eastern boundaries of said Section 1200 to the northern-most boundary of Allotment 3 of Deposited Plan 50346; generally south-easterly along the north-eastern boundary of said Allotment 3 to the eastern-most corner of said Allotment 3; north-easterly along the eastern boundaries of Section 484, Hundred of Davenport and Allotments 12 and 10 of Deposited Plan 77019 to the northern-most corner of said Allotment 10; north-easterly in a straight line to the north-western-most corner of Section 454, Hundred of Davenport; north-easterly along the northern boundaries of said Section 454 and Allotment 5 of Deposited Plan 50346; south-easterly along the north-eastern boundaries of Sections 445 and 438, Hundred of Davenport to the eastern-most corner of said Section 438; south-easterly in a straight line to the northern-most corner of Section 430, Hundred of Davenport; south-easterly and south-westerly along the north-eastern and south-eastern boundaries of said Section 430; south-westerly and south-easterly along the eastern boundary of Allotment 1 of Deposited Plan 50346 to the eastern-most corner of said Allotment 1; south-easterly along the prolongation of the latter boundary of said Allotment 1 to its intersection with the north-western boundary of Section 405, Hundred of Davenport; south-westerly along the north-western boundaries of Sections 405 and 406, Hundred of Davenport to the eastern-most corner of Section 406, Hundred of Davenport; south-easterly and south-westerly along the north-eastern and south-eastern boundaries of Allotment 2 of Deposited Plan 50346 to the northern-most corner of Section 384, Hundred of Davenport; south-easterly along the north-eastern boundary of said Section 384; south-westerly along the south-eastern boundaries of Sections 384, 383, 382, 381 and 380, Hundred of Davenport to the south-eastern-most corner of said Section 380; south-westerly in a straight line to the north-eastern-most corner of Section 284, Hundred of Davenport; north-easterly in a straight line to the north-western-most corner of Section 283, Hundred of Davenport; north-easterly along the northern boundaries of Sections 283 and 262, Hundred of Davenport; south-westerly along the south-eastern boundaries of Sections 262, 263, 264, 265, 266, 267 and 268, Hundred of Davenport to the south-eastern-most corner of said Section 268; south-westerly in a straight line to the north-eastern-most corner of Section 269, Hundred of Davenport; south-westerly along the south-eastern boundaries of Sections 269, 270 and 271, Hundred of Davenport and Allotment 49 of Filed Plan 10104 to the southern-most corner of said Allotment 49; south-easterly in a straight line to the western-most corner of Allotment 56 of Filed Plan 10979; south-easterly to the southern-most corner of said Allotment 56; south-easterly in a straight line to the south-western-most corner of Allotment 3 of Deposited Plan 37601; south-easterly along the southern boundaries of Allotments 3, 4, 6 and 7 of Deposited Plan 37601 to the south-eastern corner of said Allotment 7; southerly in a straight line to the north-eastern-most corner of Allotment 3 of Filed Plan 6433; south-westerly along the eastern boundaries of said Allotment 3 and Sections 225, 224, 223, 222, 221 and 220, Hundred of Davenport to the southern-most corner of said Section 220; south-westerly along the prolongation south-westerly of the eastern boundary of said Section 220 to its intersection with the southern boundary of the suburb of Port Augusta; generally westerly and north-westerly along the southern and western boundaries of the suburb of Port Augusta to its intersection with Latitude 32.499987 South; then west in a straight line to its intersection with the centreline of Spencer Gulf [being along a portion of the western portion of the external boundary of the Nukunu Native Title Claim (SC1996/005)].

Then west in a straight line to its intersection with the eastern boundary of the suburb of Port Augusta West then generally south-easterly and generally south-westerly along the eastern boundary of the suburb of Port Augusta West to the point of commencement.

Data Reference and source

Cadastral data sourced from Attorney-General’s Department SA (11 November 2020).

Reference datum

Geographical coordinates are referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees.

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 – Maps

Part A: Map of the external boundaries of the Determination Area

SCHEDULE 2 - Maps

Part B: Maps depicting Native Title Land and areas within the Determination Area where native title is extinguished

SCHEDULE 3 – land and waters where native title exists (Native Title Land)

Note: Please refer to Schedule 2 Part B for further detail where a portion of a parcel is indicated

SCHEDULE 4 - Native Title Land where prior extinguishment is to be disregarded

1.    Areas where extinguishment of native title is disregarded by virtue of the application of s 47A of the Native Title Act.

2.    Areas where extinguishment of native title is disregarded by virtue of the application of s 47B of the Native Title Act.

SCHEDULE 5 - Areas where native title has been extinguished

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

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

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

    (c)    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;

    (d)    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;

    (e)    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 1 and the avoidance of doubt:

    (f)    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;

    (g)    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);

    (h)    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.

2.    Native title rights and interests have been extinguished in the areas covered by Public Works (including the land and waters defined in s 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.

3.    Public Works constructed, established or situated after 23 December 1996 on Native Title Land have had such effect as has resulted from Pt 2, Div 3, of the Native Title Act.

4.    Native title rights and interests have been extinguished over all roads which have been delineated in a public map pursuant to s 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 are shown as road on the maps in Schedule 2.

5.    Native title rights and interests do not exist in any land or waters beyond 50 metres seaward of the Lowest Astronomical Tide as defined by Geoscience Australia Coastline Information Capture Program Australia 2016.

6.    Native title rights and interests have been extinguished in the following parcels or portions of parcels:

Note: Please refer to Schedule 2 Part B for further detail where a portion of a parcel is indicated