FEDERAL COURT OF AUSTRALIA

Wilson, on behalf of the Wirangu People v State of South Australia (No 2) [2022] FCA 1460

ORDERS

Preamble

A.    Native Title Determination Application SAD 64 of 2022 (Wirangu No 2 Application) was first lodged with the National Native Title Tribunal on 28 August 1997 and was transferred to this Court in 1998.

B.    Native Title Determination Application SAD 228 of 2019 (Wirangu No 3 Application) was filed in this Court on 28 October 2019. The Wirangu No 3 Application covers areas of land which were excluded from the Wirangu No 2 Application but which are now claimed in reliance on s 47B of the Native Title Act 1993 (Cth).

C.    Native Title Determination Application SAD 84 of 2021 (Wirangu Sea Claim No 2) was filed in this Court on 18 May 2021 and claims waters abutting the Wirangu No 2 Application. The area of waters claimed was significantly reduced by an Amending Application filed on 1 March 2022.

D.    The Wirangu No 2 Application, Wirangu No 3 Application and the Wirangu Sea Claim No 2 Application (Wirgangu Applications) are partially overlapped by the Nauo No 3 native title claim (SAD 63 of 2018) which was filed in this Court on 20 March 2018 (Nauo Overlapping Claim).

E.    By Orders of the Court each of the Wirangu Applications were separated into two parts being “Part A” and “Part B”.

F.    The Wirangu Applications Part B comprise that part of the Application areas that are subject to the Nauo Overlapping Claim and are being dealt with in separate proceedings.

G.    Part A of the Wirangu No 2 Application was listed for trial to commence on 4 November 2019 to determine whether native title exists in relation to any land and waters of the Part A claim area and, to the extent that it does, who are the persons, or each group of persons, holding the common or group rights comprising the native title and the nature and extent of the native title rights and interests.

H.    The Applicant, the State of South Australia and the other respondents have now reached an agreed settlement of Part A of the Wirangu Applications without the need to proceed to trial. In reaching this settlement all parties have negotiated in good faith and with full advice from their legal representatives, including Counsel, and experts. The terms of the agreed settlement are recorded in an Indigenous Land Use Agreement between the State and the Wirangu People (Wirangu Part A Settlement ILUA) and in this Determination of native title.

I.    This Determination will take effect upon the registration of the ILUA under Div 3 of Pt 2 of the Native Title Act 1993 (Cth).

J.    The applicant and the State have entered into the Wirangu Part A Settlement ILUA which, among other matters, provides that upon its registration 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.

K.    In reaching agreement to settle this claim the parties have carried out a comprehensive analysis of the tenure records for the Part A area. On 2 April 2020 a separate question was referred to the Federal Court of Australia concerning whether native title was extinguished over certain parcels of land dedicated to the District Council of Streaky Bay (Streaky Bay Golf Course). In Wilson v State of South Australia (No 4) [2020] FCA 1805 the Court determined that native title had not been wholly extinguished over the relevant parcels. An appeal from that judgment was dismissed by the Full Court on 18 October 2021 (District Council of Streaky Bay v Wilson (2021) 287 FCR 538).

L.    The tenure position reflected in this Determination and the Wirangu Part A Settlement ILUA represents a negotiated outcome that has been agreed between the parties and the outcome of the separate question regarding the Streaky Bay Golf Course.

M.    The parties acknowledge that, upon the making of this Determination, 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 pursuant to s 87A of the Native Title Act 1993 (Cth):

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 19 below (the Determination).

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

3.    In the event that the Wirangu Part A Settlement ILUA is not registered on the Register of Indigenous Land Use Agreements within eight months of the date of this Order, or such other 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 Wirangu Part A Settlement 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 item 2 of Schedule 6;

(c)    to determine the effect on native title rights and interests of any public works referred to in item 2 of Schedule 6.

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 1993 (Cth);

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

(c)    Native Title Land means the land and waters referred to in paragraph 7 of these orders; and

(d)    Natural Resources means:

(i)    any animal, plant, fish and bird life found on or in the land and waters of the Native Title Land, including but not limited to medicinal plants, wild tobacco, feathers and resin; and

(ii)    any clays, soil, sand, gravel, rock or ochre found on or below the surface of the Native Title Land;

    that have traditionally been taken and used by the Native Title Holders, but does not include:

A.    animals that are the private personal property of another;

B.    crops that are the private personal property of another; and

C.    minerals as defined in the Mining Act 1971 (SA) and petroleum as defined in the Petroleum and Geothermal Energy Act 2000 (SA);

(e)    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.

(f)    NTA means the Native Title Act 1993 (Cth);

(g)    NT Land means Native Title Land;

(h)    HNA Land means Harbours and Navigation Act Land;

(i)    NT means Native Title.

Determination Area

6.    The Determination Area comprises all of the land and waters within the external boundary of the Wirangu No 2 Part A Application, the Wirangu No 3 Part A Application and the Wirangu Sea Claim No 2 Part A Application as described at Schedule 1.

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

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

8.    Section 47A or s 47B of the Native Title Act 1993 (Cth) apply to those parcels or parts of parcels described in Parts A and B respectively of Schedule 4. The prior extinguishment of native title over those areas is disregarded for the purpose of this Determination and native title exists in those parcels or parts of parcels.

9.    In accordance with the agreement recorded in Wirangu Part A Settlement ILUA native title exists, subject to the terms of these Orders, in Adjacent land and Subjacent land within the Determination Area that is vested in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA), including the areas identified in Schedule 5 but excluding those areas identified in Schedule 6.

Areas within Determination Area where native title does not exist

10.    Native title has been extinguished in those areas described in Schedule 6.

Native Title Holders

11.    Under the traditional laws and customs acknowledged and observed by the Wirangu People the Native Title Holders are those living Aboriginal people who are the descendants of any of the following apical ancestors including those who have been adopted by them and their descendants:

(a)    Binilya and Kaltyna;

(b)    Bobby Wandrooka;

(c)    Eliza Ellen;

(d)    Eve or Eva Mary;

(e)    Imbanga and her spouse Tjeltjinya;

(f)    Jack and Annie Wombat;

(g)    Kulbula;

(h)    Lucy Minjia and her spouse Bob Ware;

(i)    Siblings Nellie Louise Gray, Dhulbalgurda Frank Gray and Kwana Ted Gray;

(j)    the Wirangu mother of Ada Beagle;

(k)    the Wirangu mother of siblings Jimmy and Arthur Richards;

(l)    Tjeira and her spouse Yari Wagon Billy;

(m)    Wilubi; and

(n)    Yaldildi Johnny Gibera.

    and who identify as Wirangu and are recognised by the other Native Title Holders under the traditional laws and customs acknowledged and observed by the Wirangu People as having rights and interests in the Determination Area.

Rights and Interests

12.    Subject to paragraphs 13, 14 and 15, 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 to possess, occupy, use and enjoy the Native Title Land;

(b)    the right to make decisions about the traditional use and enjoyment of the Native Title Land;

(c)    the right of access to the Native Title Land;

(d)    the right to enjoy the Natural Resources of the Native Title Land;

(e)    the right to share and exchange the Natural Resources of the Native Title Land for traditional purposes;

(f)    the right to maintain and protect places of importance under traditional laws, customs and practices in the Native Title Land; and

(g)    the right to be accompanied onto 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 cultural activities on the Native Title Land; or

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

General Limitations

13.    The native title rights and interests set out at paragraph 12 are for personal, domestic and communal use.

14.    The native title rights and interests described in paragraph 12 do not confer possession, occupation, use and enjoyment of the land and waters on the Native Title Holders to the exclusion of others.

15.    The native title rights and interests set out at paragraph 12 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

16.    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 Crown in right of the Commonwealth of Australia;

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

(e)    the interests of the Aboriginal Lands Trust in the lands set out in Schedule 4 pursuant to the Aboriginal Lands Trust Act 1966 (SA);

(f)    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;

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

(h)    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;

(i)    the rights and interests of the State and the Native Title Holders pursuant to the Wirangu Part A Settlement ILUA;

(j)    the rights and interests of Telstra Corporation Limited (ACN 051 775 556), its related bodies corporate and successors in title:

(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 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 Determination Area 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 1996 (SA) 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 (Easements);

(vi)    to provide its employees, agents or contractors with access to Existing Infrastructure, New Infrastructure and the Easements within 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 each of the District Council of Streaky Bay, the Wudinna District Council, and the District Council of Elliston in their relevant local government areas 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);

(m)    the interests of persons to whom valid or validated interests have been granted by a Council under the Local Government Act 1934 (SA) or the Local Government Act 1999 (SA).

17.    The relationship between the native title rights and interests in the Native Title Land that are described in paragraph 12 and the other rights and interests that are described in paragraph 16 (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 1993 (Cth) 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:

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

19.    The Wirangu Aboriginal Corporation (ICN 9333) is to:

(a)    be the prescribed body corporate for the purposes of s 57(2) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming 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.

SCHEDULE 1

External boundary description of the Determination Area

Commencing at the south-western-most corner of Section 45, Hundred of Petina (Port Lincoln – Thevenard Railway corridor / Tod River Pipeline parcel) [being a point on the external boundary of Far West Coast Determination Area (SCD2013/002) and the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)]; then south-easterly along the south-western boundaries of Section 20, Hundred of Perlubie and Section 59, Hundred of Walpuppie to the southern-most corner of the said Section 59; south-westerly along the prolongation south-westerly of the south-eastern boundary of Section 59, Hundred of Walpuppie to its intersection with the centreline of the Eyre Highway road reserve; generally south-easterly along the centreline of the Eyre Highway road reserve to its intersection with the centreline of the Cocata Road road reserve [being along a portion of the western portion of the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)].

Then westerly in a straight line to the northern-most corner of Allotment 3 in Deposited Plan 26699; south-westerly in a straight line toward the point Longitude 134.391364 East, Latitude 33.333146 South to its intersection with a line 10 metres seaward of Lowest Astronomical Tide [being along the northern portion of the external boundary of Nauo #3 Native Title Claim (SC2018/001)].

Then generally north-westerly along a coastal boundary inclusive of the following:

    all waters and natural features 10 metres seaward of Lowest Astronomical Tide;

    all waters and natural features 50 metres seaward of Lowest Astronomical Tide of easily accessible beaches as identified by the State and applicants as defined in the following table (coordinates are approximate and subject to survey):

    all waters and natural features within Baird Bay enclosed by a straight line extending from Longitude 134.358389 East, Latitude 33.187207 South to Longitude 134.352691 East, Latitude 33.188359 South;

    all of Jones Island and surrounding waters and natural features 10 metres seaward of Lowest Astronomical Tide (at the entrance of Baird Bay)

to a point being the intersection of a line 10 metres seaward of Lowest Astronomical Tide with a line extending south-westerly from the western-most point at Lowest Astronomical Tide of Cape Bauer at approximately Longitude 134.060159 East, Latitude 32.723396 South to the intersection of a line 300 metres seaward of Lowest Astronomical Tide with Latitude 32.724291 South.

Then north-easterly in a straight line to the western-most point at Lowest Astronomical Tide of Cape Bauer at approximately Longitude 134.060159° East, Latitude 32.723396° South; generally easterly, generally southerly, generally northerly and generally north-westerly along Lowest Astronomical Tide to the south-east corner of the Hundred of Wallanippie [being along a portion of the eastern portion of the external boundary of native title claim Far West Coast Sea Claim (SC2016/001)].

Then northerly along the eastern boundary of the Hundred of Wallanippie to the south-west corner of the Hundred of Carawa; easterly along the southern boundaries of the Hunderd of Carawa and the Hundred of Petina to the point of commencement [being along a portion of the southern portion of the external boundary of Far West Coast Determination Area (SCD2013/002)].

Data Reference and source

Cadastral and Lowest Astronomical Tide data sourced from Attorney-General’s Department (24 March 2022).

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

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

SCHEDULE 2

Part B: Maps depicting Native Title Land

SCHEDULE 3 – NATIVE TITLE EXISTS

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

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

SCHEDULE 4 – PART A

Areas where extinguishment of native title is to be disregarded due to the operation of s47A or s47B of the Native Title Act 1993

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

Section 47A Parcels

SCHEDULE 4 – PART B

Section 47B Parcels

SCHEDULE 5

Harbors and Navigation Act Land

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

SCHEDULE 6

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 6

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 section 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 Native Title Act 1993 (Cth)) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date including but not limited to the following:

(a)    the toilet block constructed by or on behalf of Wudinna District Council on section 114 in the Hundred of Minnipa;

(b)    the boat ramp and car park constructed by or on behalf of District Council of Streaky Bay on section 374 in the Hundred of Ripon; and

(c)    the toilet block, boat ramp and car park constructed by or on behalf of District Council of Streaky Bay on section 243 in the Hundred of Wrendfordsley.

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 1993 (Cth).

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 section 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.