FEDERAL COURT OF AUSTRALIA

Weetra-Height on behalf of the Nauo People v State of South Australia [2023] FCA 454

ORDERS

THE COURT NOTES THAT:

A.    Native Title Determination Application No SAD 65 of 2022 (Nauo Application) was first lodged with the National Native Title Tribunal on 28 August 1997 and was transferred to this Court in 1998.

B.    The Nauo Application was amended by orders of Mansfield J on 2 April 2012 and by orders of O’Bryan J on 7 December 2021.

C.    The Nauo Application was 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.

D.    The Applicants, the State of South Australia and the other respondents have now reached an agreed settlement of the Nauo Application without the need to proceed with the trial.

E.    On 15 October 2021 the Nauo Applicant filed the Nauo # 4 Native Title Determination Application SAD 185 of 2021 (Nauo #4 Application). The Nauo #4 Application covers areas of land which were excluded from the Nauo Application but which are now claimed in reliance on s 47B of the Native Title Act 1993 (NTA). The parties have agreed to settle the Nauo #4 Application on the same terms as the Nauo Application.

F.    The terms of the agreed settlement are recorded in an Indigenous Land Use Agreement between the State and the Applicants (Nauo Settlement ILUA) and in this Determination of native title.

G.    The Applicants and the State have agreed to enter into the Nauo 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.

H.    This Determination will take effect upon the registration of the ILUA under Division 3 of Part 2 NTA.

I.    The Applicants and the State have carried out a comprehensive analysis of the tenure records for the Application areas. The tenure position reflected in this Determination and the Nauo Settlement ILUA represents a negotiated outcome that has been agreed between the parties.

J.    The Applicants and the State have entered into discussions in relation to a potential agreement to be made pursuant to s 47C(1)(b) 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 s 13 and s 47C NTA will be made.

K.    The parties acknowledge that the effect of the making of this Determination will be to recognise that the members of the Nauo claimant group, 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 s 87 of the NTA,

THE COURT ORDERS THAT:

1.    There be a determination of native title in the Nauo Application and the Nauo #4 Application (Nauo Applications) in the terms set out at paragraphs 5 to 18 below (the Determination). 

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

3.    In the event that the Nauo 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 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 Nauo Settlement ILUA will 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 item 2 of Schedule 6; and

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

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 Part 15 of the Native Title Act;

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

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

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

(e)    Native Title Land means the land and waters referred to in paragraphs 7, 8 and 9 of these orders; and 

(f)    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;

(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); 

(g)    Nauo Applications has the meaning given in paragraph 1;

(h)    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 Nauo Applications 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.    Sections 47A or 47B of the NTA 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 in accordance with the terms of these orders.  

9.    The Court notes that the State and the Applicants have agreed to enter into the Nauo Settlement ILUA. In accordance with the agreement recorded in that 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 section 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 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 Nauo antecedents: 

(a)    Topsy Ahang;

(b)    Mother of Elizabeth Anderson;

(c)    Mary, mother of Henry Weetra; and

(d)    Frederick Milerah;

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

Rights and Interests 

12.    Subject to paragraphs 13, 14 and 15, 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. 

General Limitations

13.    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. 

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

15.    For the avoidance of doubt, the native title interest expressed in paragraph 12(c) (the right to use natural water resources) is subject to the Landscapes South Australia Act 2019 (SA). 

Others Interests and Relationship with the 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); 

(ii)    the rights and 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)    the interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power including, but not limited to, rights and interests granted or recognised pursuant to the Aquaculture Act 2001 (SA), Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Native Vegetation Act 1991 (SA), Fisheries Management Act 2007 (SA), Natural Resources Management Act 2004 (SA), Mining Act 1971 (SA), and Petroleum and Geothermal Energy Act 2000 (SA), all as amended from time to time; 

(g)    the 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 permits issued for the Western Skipjack Tuna Fishery;  

(j)    the rights and interests of the State and the Native Title Holders pursuant to the Nauo 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: 

1    to inspect land; 

1    to install, occupy and operate telecommunications facilities; and 

1    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 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 Wudinna District Council, the District Council of Elliston and the District Council of Lower Eyre Peninsula 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;

(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). 

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 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:

18.    The native title the subject of this determination is to be held on trust. 

19.    The Nauo Aboriginal Corporation (ICN 9948), a prescribed body corporate, is to hold the rights and interests from time to time comprising the native title the subject of this determination 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 of the Determination Area

External Boundary Description

Commencing at a point being the intersection of a line 10 metres seaward of Lowest Astronomical Tide with a straight line between Longitude 134.802539 East, Latitude 33.755822 South and the intersection of Lowest Astronomical Tide with Longitude 134.891566 East; then north-easterly in a straight line to intersection of Lowest Astronomical Tide with Longitude 134.891566 East; north-easterly in a straight line to the intersection of the centreline of the Birdseye Highway road reserve with the centreline of the Flinders Highway road reserve; generally north-easterly along the centreline of the Birdseye Highway road reserve to its intersection with the centreline of the Kyancutta-Mount Wedge Road road reserve; generally north-easterly along the centreline of the Kyancutta-Mount Wedge Road road reserve until it becomes the centreline of the Mount Wedge Road road reserve; generally north-easterly along the centreline of the Mount Wedge Road road reserve to its intersection with the prolongation westerly of the southern boundary of Section 15, Hundred of Cocata; easterly along said prolongation; easterly and northerly along the southern and eastern boundaries of Section 15, Hundred of Cocata; easterly, generally northerly and generally north-westerly along the southern, eastern and north-eastern boundaries of Section 36, Hundred of Kappakoola; north- westerly along the prolongation of the north-eastern boundary of said Section 36 to its intersection with the centreline of the Mount Wedge Road road reserve; generally north-easterly along the centreline of the Mount Wedge Road road reserve to its intersection with the centreline of the Elliston Stock Route road reserve; generally north-easterly along the centreline of the Elliston Stock Route road reserve to the point Longitude 135.543903 East, Latitude 33.134353 South; south-easterly to the point Longitude 135.548236 East, Latitude 33.135118 South; north-easterly to the point Longitude 135.550658 East, Latitude 33.133682 South [being a point on the centreline of the Elliston Stock Route road reserve]; north-easterly along the centreline of the Elliston Stock Route road reserve to its intersection with the centreline of the Eyre Highway road reserve [being a point on the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)] [being along the south-eastern portion of the external boundary of Wirangu No 2 Native Title Claim (SAD6019/1998)].

Then south-easterly along the centreline of the Eyre Highway road reserve to its intersection with the centreline of the Tod Highway road reserve; then generally south-easterly and generally southerly along the centreline of the Tod Highway road reserve to its intersection with Latitude 34.488478 South; then generally southerly in straight lines passing through the following points ;

then south-westerly in a straight line towards the point Longitude 135.643266 East, Latitude 34.748119 South to its intersection with the south-western boundary of the north-eastern portion of Section 39, Hundred of Uley [being a point on the external boundary of native title claim Nauo #2 (SAD188/2016)] [being along a portion of the western portion of the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)].

Then westerly, southerly and south-westerly in straight lines passing through the following

points ;

then westerly in a straight line towards the point Longitude 135.400967 East, Latitude 34.817477 South to its intersection with a line 10 metres seaward of Lowest Astronomical Tide [being along a portion of the northern portion of the external boundary of native title claim Nauo #2 (SAD188/2016)].

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 Coffin Bay enclosed by a straight line extending from Longitude 135.358070 East, Latitude 34.528230 South to Longitude 135.376706 East, Latitude 34.523967 South;

to the point of commencement.

Data Reference and source

Cadastral and Lowest Astronomical Tide data sourced from Department for Trade and Investment (2 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

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.