FEDERAL COURT OF AUSTRALIA

Wilson on behalf of the Wirangu People and Weetra on behalf of the Nauo People v State of South Australia [2023] FCA 60

ORDERS

THE COURT NOTES THAT:

A.    Native Title Determination Application No 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. It has been subject to various amendments since it was first filed.

B.    Native Title Determination Application No SAD 63 of 2018 (Nauo #3 Application) was filed in this Court on 16 March 2018 and was amended to reduce the area subject to the claim by amending Application filed on 8 December 2021.

C.    The Nauo #3 Application overlaps a portion of the Wirangu No 2 Application and, on 5 April 2018, Justice White ordered that the Wirangu No 2 Application be separated into two parts called “Wirangu No 2 Part A” and “Wirangu No 2 Part B”, with Wirangu No 2 Part B and Nauo No 3 to be dealt with in the same proceedings.

D.    Native Title Determination Application No 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 (NTA).

E.    On 26 November 2019 orders were made that the Wirangu No 3 Application be separated into two parts called “Wirangu No 3 Part A” and “Wirangu No 3 Part B” in conformity with the areas separated into Parts A and B in the Wirangu No 2 Application.

F.    Native Title Determination Application No SAD 84 of 2021 (Wirangu Sea Claim #2) was filed in this Court on 18 May 2021 and was amended to reduce the area subject to the claim by amending Application filed on 1 March 2022. On 3 June 2021, orders were also made separating the Wirangu Sea Claim #2 into Part A and Part B in conformity with the areas separated into Parts A and B in the Wirangu No 2 Application.

G.    Wirangu No 2 (Part B), Wirangu No 3 (Part B), Wirangu Sea Claim #2 (Part B) and Nauo #3 Applications were each listed for trial to commence on 2 August 2021 to determine whether native title exists in relation to any land and waters of the 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 Wirangu and Nauo Applicants, the State of South Australia and the other respondents have now reached an agreed settlement of the Wirangu No 2 Part B, Wirangu No 3 Part B, Wirangu Sea Claim #2 (Part B) and the Nauo #3 Applications without the need to proceed with the trial.

I.    The terms of the agreed settlement are recorded in an Indigenous Land Use Agreement between the State and the Applicants (Wirangu Part B / Nauo No 3 Settlement ILUA) and in this Determination of native title.

J.    The Applicants and the State have agreed to enter into the Wirangu Part B / Nauo No 3 Settlement ILUA which, among other matters, provides that upon its registration the vesting of adjacent land and subjacent land in the Minister under s15(1)(a) of the Harbors and Navigation Act 1993 (SA) is a valid act to which the non-extinguishment principle applies.

K.    This Determination will take effect upon the registration of the Wirangu Part B / Nauo No 3 Settlement ILUA under Division 3 of Part 2 of the NTA.

L.    The Applicants and the State have carried out a comprehensive analysis of the tenure records for the claim area. The tenure position reflected in this Determination and the Wirangu Part B / Nauo No 3 Settlement ILUA represents a negotiated outcome that has been agreed between the parties.

M.    The Applicants and the State have entered into discussions in relation to a potential agreement to be made pursuant to s 47C(1)(b) of the NTA over Park Areas within the Determination Area. Upon the making of an agreement, an application to vary the Determination to reflect any such agreement in accordance with ss 13 and 47C of the NTA will be made.

N.    The Parties acknowledge that the effect of the making of this Determination will be to recognise that members of both the Nauo and Wirangu claimant groups, in accordance with the traditional laws acknowledged and the traditional customs observed by them, hold native title rights and interests in the Native Title Land (as defined in the orders below).

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 ss 87 and 87A of the NTA and by the consent of the parties,

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 18 below (the Determination).

2.    The Determination will take effect upon the Wirangu Part B / Nauo No 3 Settlement ILUA being registered on the Register of Indigenous Land Use Agreements.

3.    In the event that the Wirangu Part B / Nauo No 3 Settlement ILUA is not registered on the Register of Indigenous Land Use Agreements within eight months of the date of these orders, or such other later time as the Court may order, the matter is to be listed for further directions.

4.    The Applicants, 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 B / Nauo No 3 Settlement ILUA will be registered on the Register of Indigenous Land Use Agreements within eight months of the date of these orders;

(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

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 Part 15 of the NTA;

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

(c)    Customary Interest means the interests held by the Customary Interest Holders to access the Native Title Land and hunt, gather and enjoy the Natural Resources of the Native Title Land in accordance with the traditional laws and customs of the Native Title Holders;

(d)    Customary Interest Holders has the meaning given in paragraph 12;

(e)    Determination Area has the meaning given in paragraph 6;

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

(g)    Native Title Holders has the meaning given in paragraph 11;

(h)    Native Title Land means the land and waters referred to in paragraph 7; and

(i)    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:

(iii)    animals that are the private personal property of another;

(iv)    crops that are the private personal property of another; and

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

(j)    NT means Native Title;

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

(l)    NT Land means Native Title Land;

(m)    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.    The Determination Area comprises all of the land and waters within the external boundary of the area 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 47B of the NTA applies to those parcels or parts of parcels described in 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 in accordance with the terms of these orders.

9.    In accordance with the agreement recorded in the Wirangu Part B / Nauo No 3 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 by virtue of extinguishment

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 and Nauo people, the Native Title Holders are those living Aboriginal people who are the descendants whether by birth or traditional adoption from any of the following Wirangu and or Nauo antecedents:

(i)    Topsy Ahang;

(ii)    mother of Elizabeth Anderson;

(iii)    Jack Buckskin;

(iv)    Maria, Mother of Freddie Chester;

(v)    Eliza Ellen (and the descendants of her son Bob Ware and spouse Lucy Minjia, and her daughters Jinny and Dinah Ware);

(vi)    Yaldildi Johnny Gibera;

(vii)    Mary, mother of Henry Weetra;

(viii)    mother of Nellie Williams,

and who identify as either Wirangu and/or Nauo and are recognised by the other Native Title Holders as having rights and interests in the Determination Area.

Customary Interest Holders

12.    For the purpose of paragraph 13(i)(iii), Customary Interest Holders are those living Aboriginal people who, while not Native Title Holders in the Determination Area, are descendants whether by birth or traditional adoption from any of the following Wirangu and or Nauo antecedents:

(i)    Bilinyua and Kaltinya;

(ii)    Bobby Wandrooka;

(iii)    Eve or Eva Mary;

(iv)    Imbanga and her spouse Tjeltjinya;

(v)    Jack and Annie Wombat;

(vi)    Kulbula;

(vii)    siblings Nellie Dhulbalgurda, Frank and Kwana Ted Gray;

(viii)    the Wirangu mother of Ada Beagle;

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

(x)    Tjeira and her spouse Yari Wagon Billy;

(xi)    Wilubi; and

(xii)    Frederick Milerah.

Rights and Interests

13.    Subject to paragraphs 14, 15 and 16 below, the nature and extent of the native title rights and interests of the Native Title Holders 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 be present on, move about on and travel over the Native Title Land;

(b)    the right to take, enjoy, share and exchange the Natural Resources of the Native Title Land for traditional purposes;

(c)    the right to use the natural water resources of the Native Title Land for traditional purposes;

(d)    the right to conduct ceremonies on the Native Title Land;

(e)    the right to maintain and protect sites and places of cultural significance under the traditional laws and customs of the Native Title Holders on the Native Title Land;

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

(g)    the right to hold meetings on the Native Title Land;

(h)    the right to light fires on the Native Title Land for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

(i)    the right to be accompanied onto the Native Title Land by those people who, although not Native Title Holders, recognise and are bound by the traditional laws and customs of the Native Title Holders and who 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)    Customary Interest Holders.

General Limitations

14.    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.

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

(a)    the traditional laws acknowledged and traditional customs observed by the Native Title Holders; and

(b)    the laws of the State and Commonwealth.

16.    For the avoidance of doubt, the native title interest expressed in paragraph 13(c) (the right to use natural water resources) is subject to the Landscapes South Australia Act 2019 (SA).

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 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);

(ii)    the rights or interests of any person or persons validly granted or created in accordance with the National Parks and Wildlife Act 1972 (SA); and

(iii)    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 Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Southern Bluefin Tuna Fishery, the Western Tuna and Billfish Fishery and the Southern and Eastern Scalefish and Shark Fishery, and permits issued for the Western Skipjack Tuna Fishery;

(j)    the rights and interests of the State and the Native Title Holders pursuant to the Wirangu Part B / Nauo No 3 Settlement ILUA;

(k)    the rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd (ACN 648 133 073), any related bodies corporate and successors in title:

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

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

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

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

(l)    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 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;

(m)    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);

(n)    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).

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 (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; and

(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 to be held in trust.

20.    The Wirangu and Nauo Aboriginal Corporation (ICN 9901), a prescribed body corporate, is to hold the rights and interests from time to time comprising the native title in trust for the Native Title Holders.

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

SCHEDULE 1

External Boundary Description

Commencing at the intersection of the centreline of the Eyre Highway road reserve with the centreline of the Cocata Road road reserve [being a point on the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)]; then generally south-easterly along the centreline of the Eyre Highway road reserve to its intersection with the centreline of the Elliston Stock Route road reserve [being along a portion of the western portion of the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)].

Then generally south-westerly along the centreline of the Elliston Stock Route road reserve to the point Longitude 135.550658 East, Latitude 33.133682 South; south-westerly to the point Longitude 135.548236 East, Latitude 33.135118 South; north-westerly to the point Longitude 135.543903 East, Latitude 33.134353 South [being a point on the centreline of the Elliston Stock Route road reserve]; generally south-westerly along the centreline of the Elliston Stock Route road reserve to its intersection with the centreline of the Mount Wedge Road road reserve; generally south-westerly along the centreline of the Mount Wedge Road road reserve to its intersection with the prolongation north-westerly of the north-eastern boundary of Section 36, Hundred of Kappakoola; south-easterly along the said prolongation to the northern-most corner of Section 36, Hundred of Kappakoola; generally south-easterly, generally southerly and westerly along the north-eastern, eastern and southern boundaries of said Section 36; southerly and westerly along the eastern and southern boundaries of Section 15, Hundred of Cocata to the south-western corner of said Section 15; westerly along the prolongation westerly of the southern boundary of Section 15, Hundred of Cocata to its intersection with the centreline of the Mount Wedge Road road reserve; generally south-westerly along the centreline of the Mount Wedge Road road reserve until it becomes the centreline of the Kyancutta-Mount Wedge Road road reserve; generally south-westerly along the centreline of the Kyancutta-Mount Wedge Road road reserve to its intersection with the centreline of the Birdseye Highway road reserve; generally south-westerly along the centreline of the Birdseye Highway road reserve to its intersection with the centreline of the Flinders Highway road reserve; south-westerly in a straight line to the intersection of mainland Lowest Astronomical Tide with Longitude 134.891566 East; south-westerly along the prolongation of said straight line to its intersection with a line 10 metres seaward of mainland Lowest Astronomical Tide [being along the north-western portion of the external boundary of native title claim Nauo (SAD6021/1998)].

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

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

 •   all waters and natural features 50 metres seaward of mainland 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 Waterloo Bay enclosed by a straight line extending from Longitude 134.874215 East, Latitude 33.652026 South to Longitude 134.862809 East, Latitude 33.644993 South;

•    all waters and natural features surrounding and including a portion of land known as Walkers Rock bounded by a line commencing at Longitude 134.857126 East, Latitude 33.555677 South, being a point on a line 50 metres seaward of mainland Lowest Astronomical Tide. Then generally northerly and north-westerly through the following coordinate points:

the latter being a point on a line 50 metres seaward of Lowest Astronomical Tide southerly of a portion of land known as Walkers Rock, then generally north-westerly, northerly, north-easterly, easterly and south-easterly along said line to the point Longitude 134.856861 East, Latitude 33.553472 South. Then generally south-easterly and easterly through the following coordinate points:

the latter being a point on a line 50 metres seaward of mainland Lowest Astronomical Tide.

•    all waters and natural features within Venus Bay enclosed by a straight line extending from Longitude 134.660613 East, Latitude 33.230053 South to Longitude 134.660091 East, Latitude 33.227137 South;

to its intersection with a straight line from the northern-most corner of Allotment 3 in Deposited Plan 26699 to Longitude 134.391364 East, Latitude 33.333146 South; north-easterly in a straight line to the northern-most corner of Allotment 3 in Deposited Plan 26699; easterly in a straight line to the point of commencement.

Data Reference and source

Cadastral and Lowest Astronomical Tide data sourced from Department for Trade and Investment (9 August 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

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.