FEDERAL COURT OF AUSTRALIA

Thomas on behalf of the Nukunu People (Area 2) Native Title Claim v State of South Australia [2022] FCA 48

ORDERS

THE COURT NOTES THAT:

A.    Native Title Determination Application No. SAD215 of 2021 (formerly SAD 6012 of 1998) was lodged with the Federal Court of Australia on 16 December 1998, having been filed and registered with the National Native Title Tribunal as SC 1996/005 on 10 April 1996.

B.    The Application was amended in the form of documents filed on 25 September 2012 and 30 August 2019 and that portion that was not overlapped by the Kokatha No.3 claim (SAD 83 of 2016) was determined by consent on 17 June 2019:  Turner on behalf of the Nukunu People v State of South Australia [2019] FCA 863 (Area 1).

C.    On 30 August 2019 the remainder of the Application was reduced to resolve any overlap by forming a common boundary between the Application and the remainder of the formerly overlapping Barngarla Native Title Determination Application (SAD 6011 of 1998).

D.    The balance of the area of the Application not covered by the consent determination for Nukunu Area 1 and as amended to resolve the area of overlap is referred to as Nukunu Area 2.

E.    The applicant and the first respondent (State) have negotiated in good faith 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 (Nukunu (Area 2) Settlement 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) (NTA).

F.    The applicant and the State have carried out an analysis of the historical tenure records within the Nukunu Area 2 (Determination Area). The tenure position reflected in this Determination represents a compromise that has been agreed between the parties for the purposes of settlement. The applicant and the State agree that the Determination Area (including the Native Title Land and the area where native title does not exist) was Nukunu country at sovereignty.

G.    The parties agree that the ILUA:

(i)    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 will be that, pursuant to s 24EBA of the NTA 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

(ii)    addresses the native title status of parcels which, in the course of negotiating the tenure schedules to this determination, were agreed by the parties to be included in the ILUA.

H.    The parties acknowledge that, when this Determination takes effect, the members of the native title claim group described below, 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 6 to 21 below.

2.    The Determination 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 (8) months from 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 (prior to the Determination taking effect) or the Prescribed Body Corporate (after the Determination takes effect), the State and any other respondent have liberty to apply on 14 days’ notice to a single judge of the Court:

(a)    if that party considers that the ILUA will not be 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.

5.    Each party to the proceeding is to bear its own costs.

THE COURT DETERMINES THAT:

Interpretation

6.    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 NTA;

(b)    Adjacent land and Subjacent land have the meaning given to them in s 4(1) of the Harbors and Navigation Act 1993 (SA);

(c)    Native Title Land means the land and waters referred to in paragraph 8 of these orders; and

(d)    in the event of an inconsistency between a written 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

7.    Schedule 1 describes the external boundaries of the Determination Area.

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

8.    Subject to Schedule 5, native title exists in the land and waters described in Schedules 3, 4 and 6.

9.    Section 47A or s 47B of the NTA apply to those parcels or parts of parcels described in parts A and B respectively of Schedule 4. Save for public works described in items 2, 3 and 4 of Schedule 5 the extinguishment of native title rights and interests over those areas prior to 10 April 1996 is disregarded and native title exists in those parcels or parts of parcels.

10.    Native title is recognised in Adjacent land and that portion of Subjacent land that lies within the Determination Area, excluding those areas identified in Schedule 5, which are 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.

Areas within Determination Area where native title does not exist

11.    Pursuant to s 225 of the NTA, native title does not exist in relation to all of the land and waters comprised in those areas described in Schedule 5.

Native Title Holders

12.    Under the traditional laws and customs of the Nukunu People the Native Title Holders are those living Aboriginal people who are the descendants (including by adoption, as defined below) of the following apical ancestors:

(a)    Jinny, mother of Florence, Sam, John, Eliza and Jessie James and Frank Walters; and

(b)    Mary, grandmother of Frederick Graham

and who identify as Nukunu and are recognised by the other Native Title Holders under those traditional laws and customs as having rights and interests in the Determination Area (collectively, Native Title Holders).

In the foregoing, the words “including by adoption” are intended to include as Native Title Holders:

(a)    those Aboriginal persons, who were or are raised as children and as part of the families of any of the apical ancestors or their biological descendants; and

(b)    descendants of the Aboriginal persons described in (a) above.

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 the non-exclusive rights to use and enjoy those lands and waters, being:

(a)    the right of access to the land and waters;

(b)    the right to live on, use and enjoy the land and waters including for ceremonial purposes;

(c)    the right to take, use enjoy, share and exchange the resources of the land and waters including by fishing, hunting and gathering; but excluding those resources referred to in item 1 of Schedule 5;

(d)    the right, subject to the Natural Resources Management Act 2004 (SA) or any successor act, to use the natural water resources;

(e)    the right to conduct funerals and burials on the land and waters;

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

(g)    the right to teach traditional laws and customs to each other on the land and waters; and

(h)    the right to be accompanied on the land and waters by those people who, though not Nukunu persons, are

(i)    spouses of Nukunu persons; or

(ii)    people required by the traditional laws and customs for the performance of ceremonies or cultural activities.

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.    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; and

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

Other Interests and 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)    the interests of the Commonwealth of Australia, if any;

(c)    in relation to reserves as defined in the National Parks and Wildlife Act 1972 (SA):

(i)    the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (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);

(d)    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), Native Vegetation Act 1991 (SA), Fisheries Management Act 2007 (SA), Landscape South Australia Act 2019 (SA), Mining Act 1971 (SA), and Petroleum and Geothermal Energy Act 2000 (SA), all as amended from time to time;

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

(f)    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;

(g)    the Global Navigation Satellite System base station known as GNSS Ground Station Saltia, located within the external boundaries of Section 287, Hundred of Woolundunga in the area named Saltia (being Crown Record Volume 5756 Folio 580, Parcel Identifier H331400S287);

(h)    the rights and interests of all parties to the ILUA;

(i)    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;

(j)    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)    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 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.

(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)) and telecommunications facilities and infrastructure within the Native Title Land including but not limited to the 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 Native Title Land (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 Native Title Land 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 Native Title Land; 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 each of The Flinders Ranges Council, District Council of Mount Remarkable and Port Augusta City Council in their relevant local government area in the Native Title Land:

(i)    under the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA);

(ii)    as an entity exercising statutory powers in respect of land and waters within the Native Title Land; 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).

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

19.    For the avoidance of doubt, the relationship between the Aboriginal-held interests listed in Schedule 4 and the native title rights and interests in the Determination Area that are described in paragraph 14 is governed by the non-extinguishment principle as defined in s 238 of the NTA.

AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS

20.    The native title is not to be held on trust.

21.    The Nukunu Wapma Thura (Aboriginal Corporation) is to:

(a)    be the prescribed body corporate for the purposes of s 57(2) of the NTA; and

(b)    perform the functions mentioned in s 57(3) of the NTA after becoming the registered native title body corporate in relation to the Native Title Land.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    These proceedings were commenced in the National Native Title Tribunal in 1996 and referred to this Court in 1998. The originating application sought a determination of native title on behalf of the Nukunu People under s 13 and s 61 of the Native Title Act 1993 (Cth). The application was amended with leave of the Court on 25 September 2012 and 30 August 2019.

2    The parties have reached agreement as to the form of the determination and now seek orders by consent under s 87A of the Act in relation to the last portion of the original claim area to be resolved (proposed determination).

3    The application under s 87A relates to an area of land of approximately 983.94 square kilometres which includes a small portion of the city of Port Augusta and a portion of the waters of the Spencer Gulf in South Australia (the determination area).

4    For the reasons that follow, the Court is satisfied that a determination should be made substantially in the terms sought by the parties.

History of the Claim

5    The original claim area was overlapped by the Kokatha No 3 and Barngarla native title determination applications. The Kokatha No 3 claim was struck out on 26 April 2019:  Croft v State of South Australia (Port Augusta Overlap Proceeding) (No 2) [2019] FCA 581. After a successful mediation the Barngarla People and Nukunu People agreed to retract the boundaries of their respective claims, resolving the remaining overlap.

6    The portion of the original claim that was unaffected by overlap was determined on 17 June 2019:  Turner on behalf of the Nukunu People v State of South Australia [2019] FCA 863.

SECTION 87A

7    Section 87A of the Act prescribes a procedure by which the parties to a native title proceeding may approach the Court for a determination by consent in relation to a part of the area covered by the originating application. The procedural requirements in this case have been fulfilled in that:

    an agreement has been reached, within a prescribed time, on a proposed determination of native title in relation to an area (s 87A(1));

    all of the prescribed persons are parties to the agreement (s 87A(2)); and

    the terms of the proposed determination are in writing and are signed by (or on behalf of) each of those parties (s 87A(3)).

8    Section 87A(4) provides that the Court may make an order in (or consistent with) the terms of the proposed determination without holding a hearing if the Court considers that an order in terms of the proposed determination is within the Court’s power and that it would be appropriate to make the order.

The proposed determination is within power

9    An order in which the Court makes a determination of native title must set out the details specified in s 225 of the Act:  Act, s 94A. Section 225 provides:

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

10    The term “native title rights and interests” is defined in part in s 223(1) as follows:

(1)    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

11    As Gleeson CJ, Gummow and Hayne JJ explained in Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, native title rights and interests in relation to land or waters are possessed under the traditional laws and customs acknowledged and observed by the peoples concerned. The normative system of laws and customs is a system that has had a continuous existence and vitality since sovereignty:  at [47]. There is an inextricable link between a society and its laws and customs:  at [49] – [56].

12    The content of the proposed determination fulfils the requirement in s 225(a) in that it identifies (at [12]) the persons or group of persons holding the common or group rights comprising the native title. They are the same people who hold the native title rights and interests recognised in Turner in respect of an adjacent area and so have previously been determined by this Court to possess native title rights and interests in accordance with their traditional laws and customs.

13    The proposed determination otherwise sets out the details specified in s 225 as follows:

    the nature and extent of the rights and interests are set out in [13] – [16], so satisfying s 225(b);

    the nature and extent of other rights and interests in the determination area are set out in [17], so satisfying s 225(c);

    the relationship between these rights and interests and those of the native title holders is set out in [18], so satisfying s 225(d); and

    the proposed determination states (at [15]) that the native title rights and interests do not confer possession, occupation, use and enjoyment of the land or waters on the native title holders to the exclusion of all others, so satisfying s 225(e).

14    The fulfilment of those conditions means that the proposed determination is within the power of the Court having regard to ss 94A, 223 and 225 of the Act.

It is appropriate to make the determination

15    The Preamble to the Act states in part:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

16    Section 87A of the Act (together with s 87 which relates to the whole of a claim area) is to be understood as forming a part of the special procedure to which the Preamble refers. As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, the focus of s 87 of the Act (relevantly equivalent to s 87A) is on the making of an agreement by the parties, the provision reflecting the importance placed by the Act on mediation or conciliation as a primary means of resolving native title disputes. As his Honour observed, the Act is designed to encourage parties to resolve proceedings without the need for adversarial litigation. The power is to be exercised flexibly, having regard to that purpose (at [36]). North J continued (at [37]):

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. 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.

17    See also Ward v State of Western Australia [2006] FCA 1848, North J (at [6] – [9]); Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992, Jagot J (at [13]); Nelson v Northern Territory (2010) 190 FCR 344, Reeves J (at [14]).

18    The Court’s role is to satisfy itself that the State is acting in good faith and has taken steps to ensure that there is a credible and rational basis for the making of a determination by consent:  Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 (at [29] – [30]). As Reeves J said in Nelson:

12    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.

13    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.

19    The Court has before it a Joint Submission prepared by the applicant and the State of South Australia in its capacity as the first respondent dated 23 December 2021. The Joint Submission identifies the processes undertaken by the State to assess the determination application against a policy within the Crown Solicitor’s Office titled “Consent Determinations in South Australia:  A Guide to Preparing Native Title Reports (2004)”. In addition to the material the State assessed for the purpose of the Turner determination, the applicant provided the State with several historical and anthropological reports together with a table of preservation evidence given by three Nukunu witnesses in 2012. The State commissioned its own anthropological assessment of the applicant’s reports and the opinion of independent Counsel was sought. On the basis of all of that material, the State formed the view that a consent determination was justifiable. A position paper explaining that view was distributed to all other respondent parties and their agreement to the proposed determination was obtained.

20    The Joint Submission refers to the continuing practices of the Nukunu People in observing the traditional laws and customs. A number of families in the claim group live in Port Augusta and the surrounding areas. The evidence of continuing connection to country includes evidence of activities including speaking for and taking responsibility for country, camping and visiting country, sharing cultural knowledge about sites and traditions, hunting and gathering, sharing resources, and spiritual practices such as smoking ceremonies.

21    The parties, in particular the applicant and the State, are to be commended for successfully negotiating to resolve this matter by consent without the need for a hearing. While the settled tenure position reflects a compromise reached between parties, the proposed determination notes that the applicant and the State agree that the determination area (including the defined Native Title Land and the areas where native title does not exist) was Nukunu country at sovereignty.

22    The determination does not create any new rights or interests for the Nukunu People. Rather, it reflects the recognition under the common law of Australia that their rights and interests exist to the present day, as they did in accordance with their traditional laws and customs long before the assertion of sovereignty.

23    I am satisfied that the State has properly assessed the claim and, in all of the circumstances described in these reasons, I am satisfied that it is appropriate to make orders substantially in the terms sought.

24    The Nukunu Wapma Thura (Aboriginal Corporation) has been identified in the proposed determination as the prescribed body corporate to be appointed for the purposes of s 57(2) of the Act and to perform the functions set out in s 57(3) of the Act. I am satisfied that the proposed order in relation to the prescribed body corporate is appropriate.

25    Before concluding, it should be mentioned that the orders to be made today will be pronounced at a sitting of the Court conducted by way of a web conference facility, to accommodate restrictions related to the COVID-19 pandemic. It is the usual practice of this Court to conduct sittings for the determination of native title in a ceremonial way. That is difficult to achieve when the Court conducts its hearing digitally. The circumstance that the Court might deliver a determination by way of an internet connection could not have been anticipated when the Act first came into force. The Nukunu People have consented to the determination being delivered in that way, rather than to delay it.

26    This determination marks the end of one of the longest running proceedings in the Court. The Nukunu People are commended for the resilience, hard work and pragmatism, now resulting in the final resolution of their claim. As has been mentioned, the outcome does not bestow on them anything they do not already possess, or tell them anything they do not already know:  the land and waters subject to this determination are of great significance to them, as they were to their ancestors, and as they will be for their descendants over generations to come.

27    The determination will now be made in a form consistent with that sought by the parties.

Associate:

Dated:    3 February 2022

SCHEDULE 1

Location of and areas comprising the Determination Area

Schedule 1 - External Boundary Description

External Boundary Description

Part 1

Commencing at the intersection of a line 50 metres seaward of Lowest Astronomical Tide with Latitude 32.761794 South, approximate Longitude 137.906186 [being a point on the external boundary of the Nukunu Part A Native Title Claim Consent Determination (SCD2019/001)]; then generally north-westerly along said line 50 metres seaward of Lowest Astronomical Tide to its intersection with the prolongation westerly of the southern boundary of the suburb of Port Augusta (The South Australian Government Gazette, 10 July 2014, Page 3147); then easterly along said prolongation to the south-western-most corner of the suburb of Port Augusta [being a point on the external boundary of the Barngarla Native Title Claim (SC1996/004)]. Then generally south-easterly along the southern boundary of the suburb of Port Augusta to its intersection with the prolongation south-westerly of the eastern boundary of Section 220, Hundred of Davenport; north-easterly along said prolongation to the southern-most corner of Section 220, Hundred of Davenport; north-easterly along the eastern boundaries of Sections 220, 221, 222, 223, 224 and 225, Hundred of Davenport and Allotment 3 of Filed Plan 6433 to the north-eastern-most corner of said Allotment 3; northerly to the south-eastern corner of Allotment 7 of Deposited Plan 37601; north-westerly along the southern boundaries of Allotments 7, 6, 4 and 3 of Deposited Plan 37601 to the south-western-most corner of said Allotment 3; north-westerly to the southern-most corner of Allotment 56 of Filed Plan 10979; north-westerly along the southern boundary of said Allotment 56 to the western-most corner of said Allotment 56; north-westerly to the southern-most corner of Allotment 9 of Filed Plan 10104; north-easterly along the south-eastern boundaries of said Allotment 9 and Sections 271, 270 and 269, Hundred of Davenport to the north-eastern-most corner of said Section 269; north-easterly to the south-eastern-most corner of Section 268, Hundred of Davenport; north-easterly along the south-eastern boundaries of Sections 268, 267, 266, 265, 264, 263 and 262, Hundred of Davenport; south-westerly along the northern boundaries of Sections 262 and 283, Hundred of Davenport to the north-western-most corner of Section 283, Hundred of Davenport; south-westerly to the north-eastern-most corner of Section 284, Hundred of Davenport; north-easterly to the south-eastern-most corner of Section 380, Hundred of Davenport; north-easterly along the south-eastern boundaries of Sections 380, 381, 382, 383 and 384, Hundred of Davenport; north-westerly along the north-eastern boundary of Section 384, Hundred of Davenport to the northern-most corner of said Section 384; north-easterly and north-westerly along the south-eastern and north-eastern boundaries of Allotment 2 of Deposited Plan 50346 to the western-most corner of Section 406, Hundred of Davenport; north-easterly along the north-western boundaries of Sections 406 and 405, Hundred of Davenport to its intersection with the prolongation south-easterly of a north-eastern boundary of Allotment 1 of Deposited Plan 50346; north-westerly along said prolongation to the eastern-most corner of said Allotment 1; north-westerly and north-easterly along the eastern boundary of said Allotment 1, north-easterly and north-westerly along the south-eastern and north-eastern boundaries of Section 430, Hundred of Davenport to the northern-most corner of said Section 430; north-westerly to the eastern-most corner of Section 438, Hundred of Davenport; north-westerly along the north-eastern boundaries of Sections 438 and 445, Hundred of Davenport; south-westerly along the northern boundaries of Allotment 5 of Deposited Plan 50346 and Section 454, Hundred of Davenport to the north-western-most corner of said Section 454; south-westerly to the northern-most corner of Allotment 10 of Deposited Plan 77019; south-westerly along the eastern boundaries of Allotments 10 and 12 of Deposited Plan 77019 and Section 484, Hundred of Davenport to the eastern-most corner of Allotment 3 of Deposited Plan 50346; generally north-westerly along the north-eastern boundary of Allotment 3 of Deposited Plan 50346, north-easterly and south-westerly along the south-eastern and north-western boundaries of Section 1200, Hundred of Davenport to the western-most corner of said Section 1200; south-westerly to the northern-most corner of Community Plan 24402; south-westerly along the north-western boundaries of Community Plan 24402, Allotments 2, 3 and 4 of Deposited Plan 1181, Allotments 78 and 77 of Deposited Plan 7111, Allotments 102 and 101 of Deposited Plan 14085, Allotments 76 and 75 of Deposited Plan 7111, Allotment 11 of Deposited Plan 1181, Allotments 74 and 73 of Deposited Plan 7111 and Allotments 14, 15, 16 and 17 of Deposited Plan 1181 to the western-most corner of Allotment 17 of Deposited Plan 1181; south-westerly to the northern-most corner of Allotment 8 of Deposited Plan 2355; south-westerly along the north-western boundaries of Allotments 8, 7, 6, 5, 4 and 3 of Deposited Plan 2355 to the western-most corner of Allotment 3 of Deposited Plan 2355; south-westerly to the northern-most corner of Allotment 2 of Deposited Plan 2355; south-westerly along the north-western boundaries of said Allotment 2 and Allotment 588 of Filed Plan 186290 to the north-western-most corner of said Allotment 588; south-westerly to the northern-most corner of Community Plan 25390; south-westerly along the north-western boundaries of Community Plan 25390 and Allotment 95 of Deposited Plan 634 to its intersection with the prolongation south-easterly of the south-western boundary of Allotment 4 of Deposited Plan 5261; north-westerly along said prolongation to the south-western-most corner of Allotment 4 of Deposited Plan 5261; north-westerly along the south-western boundaries of Allotments 4, 3, 2, 1 and 18 of Deposited Plan 5261 to the western-most corner of Allotment 18 of Deposited Plan 5261; north-westerly to the south-western-most corner of Allotment 19 of Deposited Plan 5261; north-westerly along the south-western boundaries of Allotment 19 of Deposited Plan 5261, Allotments 17 and 16 of Deposited Plan 2840, Allotment 1001 of Filed Plan 27553 and Allotments 13 and 12 of Deposited Plan 2848 to the western-most corner of Allotment 12 of Deposited Plan 2848; north-westerly to the southern-most corner of Allotment 3 of Deposited Plan 2848; north-westerly along the south-western boundaries of Allotments 3 and 2 of Deposited Plan 2848; north-westerly and north-easterly along the south-western and north-western boundaries of Allotment 1 of Deposited Plan 2848; north-easterly along the north-western boundaries of Sections 1114 and 1113, Hundred of Davenport, Allotment 102 of Filed Plan 207262, Allotments 43, 37, 38, 39, 40 and 42 of Deposited Plan 94260 to the northern-most corner of Allotment 42 of Deposited Plan 94260; north-easterly to the north-western-most corner of Allotment 1 of Deposited Plan 94260; north-easterly along the north-western boundaries of Allotment 1 of Deposited Plan 94260 and Allotment 100 of Deposited Plan 43677 to the northern-most corner of said Allotment 100; north-westerly to the eastern-most corner of Allotment 2 of Deposited Plan 27656; north-westerly along the north-eastern boundary of said Allotment 2 to the northern-most corner of Allotment 2 of Deposited Plan 27656; north-easterly to the western-most corner of Allotment 700 of Filed Plan 186402; north-easterly along the north-western boundaries of Allotments 700, 701 and 702 of Filed Plan 186402 and Sections 578, 577, 576, 575, 574 and 573, Hundred of Davenport to the northern-most corner of Section 573, Hundred of Davenport [being a point on the northern boundary of the suburb of Port Augusta]; then north-easterly and generally westerly along the northern boundary of the suburb of Port Augusta to the north-western-most corner of the suburb of Port Augusta; then easterly in a straight line toward a point being the intersection of Latitude 32.471059 South with the centreline of Spencer Gulf to its intersection with a line 50 metres seaward of Lowest Astronomical Tide [being a point on the external boundary of the Barngarla Native Title Claim Consent Determination (SCD2016/001)], [being along a portion of the southern, eastern and northern portions of the external boundary of the Barngarla Native Title Claim (SC1996/004)].

Then generally north-westerly along a line 50 metres seaward of Lowest Astronomical Tide to its intersection with the centreline of Spencer Gulf; then generally northerly along the centreline of Spencer Gulf to its intersection with Yorkeys Crossing (approximate Longitude 137.754504 East, approximate Latitude 32.404291 South); then north-easterly in a straight line to a point being the intersection of Latitude 32.320785 South with the western boundary of Allotment 121 of File Plan 218170; then generally north-easterly along the western boundaries of Allotments 121 and 122 of File Plan 218170 (Stirling North – Telford Railway corridor parcels) to the north-western-most corner of Allotment 122 of File Plan 218170; north-easterly to the south-western-most corner of Section 366, Out of Hundreds (Port Augusta); generally north-easterly along the western and north-western boundaries of Section 366, Out of Hundreds (Port Augusta);generally north-easterly along the north-western boundaries of Section 50, Hundred of Wyacca and Section 11, Hundred of Warrakimbo (Stirling North – Telford Railway corridor parcels) to the north-western-most corner of the said Section 11; north-easterly to the south-western-most corner of Section 12, Hundred of Warrakimbo; generally north-easterly along the north-western boundary of the said Section 12 (Stirling North – Telford Railway corridor parcel) to its intersection with Latitude 31.923747 South; then generally south-easterly and generally easterly in straight lines passing through the following points:

[being along a portion of the eastern portion of the external boundary of the Barngarla Native Title Claim Consent Determination (SCD2016/001)].

Then generally easterly in straight lines passing through the following points:

then north-easterly to a point Longitude 138.153568 East, Latitude 31.937959 South [being a point on the external boundary of Nukunu Part A Native Title Claim Consent Determination (SCD2019/001)].

Then generally south-westerly and generally westerly in straight lines passing through the following points:

then north-westerly to a point Longitude 138.084898 East, Latitude 31.964396 South [being a point on a 200m contour line]. Then generally southerly along that 200m contour line (western foothills of the South Flinders Ranges) to a point Longitude 137.975367 East, Latitude 32.761794 South; then west in a straight line to the point of commencement [being along a portion of the western portion of the external boundary of the Nukunu Part A Native Title Claim Consent Determination (SCD2019/001)].

Part 2

Commencing at the intersection of a line 50 metres seaward of Lowest Astronomical Tide with Latitude 32.761794 South, approximate Longitude 137.894706 [being a point on the external boundary of the Nukunu Part A Native Title Claim Consent Determination (SCD2019/001)]; then generally north-easterly, easterly and south-easterly along said line 50 metres seaward of Lowest Astronomical Tide to its intersection with Latitude 32.761794 South, approximate Longitude 137.899154 East [being a point on the external boundary of the Nukunu Part A Native Title Claim Consent Determination (SCD2019/001)]. Then west in a straight line to the point of commencement [being along a portion of the western portion of the external boundary of the Nukunu Part A Native Title Claim Consent Determination (SCD2019/001)].

Part 3

Commencing at the intersection of a line 50 metres seaward of Lowest Astronomical Tide with Latitude 32.761794 South, approximate Longitude 137.856318 [being a point on the external boundary of the Nukunu Part A Native Title Claim Consent Determination (SCD2019/001)]; then generally north-easterly, easterly and south-easterly along said line 50 metres seaward of Lowest Astronomical Tide to its intersection with Latitude 32.761794 South, approximate Longitude 137.888087 [being a point on the external boundary of the Nukunu Part A Native Title Claim Consent Determination (SCD2019/001)]. Then west in a straight line to the point of commencement [being along a portion of the western portion of the external boundary of the Nukunu Part A Native Title Claim Consent Determination (SCD2019/001)].

SCHEDULE 2

MAPS

Part A:  Map of the External Boundaries of the Determination Area

SCHEDULE 2

MAPS

Part B:  Maps depicting Native Title Land

SCHEDULE 3

Land and waters where native title exists (Native Title Land)

Native Title Land includes land or waters 50 metres seaward of the Lowest Astronomical Tide as defined by Geoscience Australia Coastline Information Capture Program Australia 2016 where native title has not been otherwise extinguished (Any extinguishment by vestings of Adjacent and Subjacent land under the Harbors and Navigation Act 1993 (SA) has been reversed).

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

Schedule 3 – Native Title Exists

SCHEDULE 4

Areas where extinguishment of native title is to be disregarded due to the operation of s 47A or s 47B of the Native Title Act 1993 (Cth)

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

Part A:  Section 47A parcels

SCHEDULE 4A – s 47A Parcels

SCHEDULE 4

Part B: Section 47B Parcels

Schedule 4B – s 47B Parcels

SCHEDULE 5

Areas where native title does not exist

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

Schedule 5 - Native Title Extinguished

Schedule 5

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 of Native Title Land covered by Public Works (including the land and waters defined in s 251D of the NTA) 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 NTA.

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.

5.    Native title rights and interests do not exist over any land and waters within the Determination Area other than those parcels listed at Schedules 3, 4 and 7 and do not exist in any land or waters beyond 5  metres seaward of the Lowest Astronomical Tide as defined by Geoscience Australia Coastline Information Capture Program Australia 2016.

6.    For ease of reference (but without limiting the above), native title does not exist in the parcels listed below: