O'Donnell on behalf of the Wilyakali Native Title Claim v State of South Australia [2023] FCA 1000

Federal Court of Australia

O’Donnell on behalf of the Wilyakali Native Title Claim v State of South Australia [2023] FCA 1000

File numbers:	SAD 33 of 2012 SAD 89 of 2022

Judgment of:	RAPER J

Date of judgment:	28 August 2023

Catchwords:	NATIVE TITLE – application for consent determination of native title – where the parties filed agreed proposed orders and determination of native title – whether the preconditions in s 87 of the Native Title Act 1993 (Cth) are satisfied – whether the proposed orders and determination are within the power of the Court – whether appropriate to make the proposed orders and determination – held: orders and determination made

Legislation:	Native Title Act 1993 (Cth) ss 24EB, 47A, 47B, 55, 56, 57, 57(2), 57(2)(b), 57(3), 66, 66(2), 66(2A), 66(3)(a), 66(3)(b), 66(3)(d), 66(10)(b), 66(10)(c), 67(1), 68, 87, 94A, 223, 223(1), 223(2), 225, 225(a), 225(b), 225(c), 225(d), 225(e)

Cases cited:	Branson on behalf of Ngadjuri Nation #2 Native Claim v State of South Australia [2023] FCA 715 Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993 Freddie v Northern Territory [2017] FCA 867 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422 Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 Risk v Northern Territory [2006] FCA 404

Division:	General Division

Registry:	South Australia

National Practice Area:	Native Title

Number of paragraphs:	67

Date of last submissions:	30 June 2023

Date of hearing:	28 August 2023

Solicitor for the Applicants:	Mr S Kenny of Camatta Lempens

Solicitor for the State of South Australia:	Ms B Pearks and Ms S Tucker of Crown Solicitor’s Office (SA)

Solicitor for the Pastoralist Respondents:	Ms C Divakaran and Mr T Mellor of Mellor Olsson

Counsel for Havilah Resources NL:	Havilah Resources NL did not appear

Solicitor for Havilah Resources NL:	Steed Lawyers

Counsel for Lodestone Mines Limited:	Lodestone Mines Limited did not appear

Solicitor for Magnetite Mines Limited:	Mr E Vickery of Minter Ellison

Counsel for Telstra Corporation Limited and Amplitel Pty Ltd:	Telstra Corporation Limited and Amplitel Pty Ltd did not appear

Solicitor for Telstra Corporation Limited and Amplitel Pty Ltd:	King & Wood Mallesons

Table of Corrections

21 September 2023	In paragraph [62], the name “Wilyakali Native Title Corporation” has been replaced with “Wilyakali Native Title Aboriginal Corporation”.

ORDERS

		SAD 89 of 2022

BETWEEN:	MAUREEN O'DONNELL (DECEASED) Applicant GLEN O'DONNELL Applicant DULCIE O'DONNELL Applicant
AND:	STATE OF SOUTH AUSTRALIA Respondent THE MUTOOROO PASTORAL CO PTY LTD Respondent WORTHING PROPERTIES PTY LTD (and others named in the Schedule) Respondent

order made by:	RAPER J
DATE OF ORDER:	28 AUGUST 2023

THE COURT NOTES THAT:

A. Native Title Determination Application No. SAD 89 of 2022 (formerly SAD 33 of 2012) (the Application) was first lodged with the Federal Court of Australia on 8 February 2012.

B. On 14 December 2018, the area covering the whole area of the Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim (SAD 6001 of 1998) was determined by consent: Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993.

C. This area was a combination of the undetermined Adnyamathanha No 1 Native Title Determination Application (SAD 6001 of 1998), the whole of the Ngadjuri Nation Native Title Determination Application (SAD 147 of 2010) (Ngadjuri claim) and the whole of the Wilyakali No 2 Native Title Determination Application (SAD 417 of 2015) (Wilyakali No 2 claim).

D. The balance of the area of the Application not covered by the consent determination for the Wilyakali No 2 claim and, as amended to resolve the area of overlap, is referred to as Wilyakali No 1.

E. The Application was amended in the form of documents filed on 15 March 2021 and resolved any overlap by forming a common boundary between the Application and the remainder of the formerly overlapping the Ngadjuri Nation No 2 claim (SAD 304 of 2011).

F. 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 (Wilyakali Settlement ILUA) and in this Determination of native title. This Determination will take effect upon the registration of the ILUA under Division 3 of Part 2 of the Native Title Act 1993 (Cth) (NTA).

G. The Applicant and the State have carried out an analysis of the historical tenure records within the Wilyakali No.1 (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 Wilyakali country at sovereignty.

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 16 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 8 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 4;

(c) to determine the effect on native title rights and interests of any Public Works as referred to in item 3 of Schedule 4.

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 Part 15 of the NTA; and

(b) 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 4, native title exists in the land and waters described in Schedule 3.

Areas within Determination Area where native title does not exist

9. Pursuant to section 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 4.

Native Title Holders

10. Under the traditional laws and customs of the Wilyakali 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:

(i) Jack Tyler and his niece Minnie Crozier (Bates);

(ii) Mary Walgu; and

(iii) Outalpa Dick;

and who identify as Wilyakali 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

11. Subject to paragraphs 12, 13 and 14, 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 access and move about;

(b) The right to live, to camp and to erect shelters and other structures;

(d) The right to gather and use the natural resources such as food, plants, timber, resin, ochre and soil;

(e) The right to cook and to light fires for cooking and camping purposes;

(f) The right to use the natural water resources, subject to the Landscape South Australia Act 2019 (SA);

(g) The right to distribute, trade or exchange the natural resources;

(h) The right to conduct ceremonies and hold meetings;

(i) The right to engage and participate in cultural activities including those relating to births and deaths;

(j) The right to carry out and maintain burials of deceased native title holders and of their ancestors;

(k) The right to teach on the Native Title Land the physical and spiritual attributes of locations and sites;

(l) The right to visit, maintain and preserve sites and places of cultural or spiritual significance to Native Title Holders under their traditional laws and customs;

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

(i) spouses of Wilyakali persons; or

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

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

General Limitations

12. The native title rights and interests set out at paragraph 11 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.

13. The native title rights and interests described in paragraph 11 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 11 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

15. 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;

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

(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 rights and interests of all parties to the ILUA;

(h) the rights and interests of Telstra Corporation Limited (ACN 051 775 556) and Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their related bodies corporate and successors in title:

(i) as the owners or operators 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:

1. to inspect land;

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

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

(iii) for their employees, agents or contractors to access their 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 their telecommunications facilities within the Native Title Land;

(i) the rights and interests of Havilah Resources Ltd, (Havilah) (including its wholly owned subsidiaries Iron Genesis Pty Ltd, (Iron Genesis) Copper Aura Pty Ltd (Copper Aura) Maldorky Iron Pty Ltd (Maldorky) and Mutooroo Metals Pty Ltd (Mutooroo)) and their related entities and successors in title from time to time in the mineral tenements listed below:

(i) Havilah,- as holder of exploration licence numbers 5853, 5903, 5904, 5956, 6194, 6203, 6211, 6258, 6355, 6359, 6360, 6428, 6567, 6593, 6660;

(ii) Iron Genesis – as holder of exploration licence numbers 5848, 6041, 6054, 6280 and 6361;

(iii) Copper Aura- as holder of exploration licence numbers 5882, 6163, 6592 and 6657;

(iv) Maldorky- as holder of registered mineral claim numbers 4364, 4271, 4272, 4273 and 4374;

(v) Mutooroo – as holder of registered mineral claim numbers 3565 and 3566,

in each case granted pursuant to the Mining Act 1971 (SA) and any subsequent licence, for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective 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

(j) the rights and interests of Magnetite Mines Ltd (Magnetite) and its related entities and successors in title from time to time in the mineral tenements listed below:

(i) Magnetite – as the holder of exploration licence number 6037 and as applicant for exploration licence application number 2020/00133 granted or applied for pursuant to the Mining Act 1971 (SA) and any subsequent licence,

for the employees, agents or contractors of the above named entities to enter the Determination Area to access their respective 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 and interests of Boss Uranium Ltd (Boss) and its related entities and successors in title from time to time in the mineral tenements listed below:

(i) Boss – as the holder of exploration licence number 6510 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,

for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.

(l) the rights and interests of Hamelin Gully Pty Ltd (Hamelin) and its related entities and successors in title from time to time in the mineral tenements listed below:

(i) Hamelin – as the holder of exploration licence numbers 6009, 6046 and 6646 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,

(m) the rights and interests of Lodestone Mines Pty Ltd (Lodestone) and its related entities and successors in title from time to time in the mineral tenements listed below:

(i) Lodestone – as the holder of exploration licence numbers 6006 and 6117, granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,

(n) the rights and interests of Investigator Resources Ltd (including its wholly owned subsidiary Gawler Resources Pty Ltd (Gawler)) and their related entities and successors in title from time to time in the mineral tenements listed below:

(i) Gawler – as the holder of exploration licence numbers 5938, 6253 and 6345 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,

(o) the rights and interests of Renascor Resources Ltd (including its wholly owned subsidiary Astra Resources Pty Ltd (Astra)) and their related entities and successors in title from time to time in the mineral tenements listed below:

(i) Astra – as the holder of exploration licence number 6451 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,

(p) the rights and interests of PepinNini Minerals Ltd (PNN) and its related entities and successors in title from time to time in the mineral tenements listed below:

(i) PNN – as the applicant for exploration licence application number 2020/00136 applied for pursuant to the Mining Act 1971 (SA) and any subsequent licence,

16. The relationship between the native title rights and interests in the Native Title Land that are described in paragraph 11 and the other rights and interests that are described in paragraph 16 (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.

AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS:

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

18. The Wilyakali Native Title Aboriginal Corporation ICN 10042 is to:

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

(b) the functions mentioned in section 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.

SCHEDULE 1

Location of and areas comprising the Determination Area

External Boundary Description

The application area covers all the land and waters within the external boundary described as: Commencing at a point on the New South Wales – South Australia State Border at Latitude 31.249987° South and extending southerly along that state border to Latitude 32.766653° South; then south westerly to the intersection with the eastern boundary of Pastoral Lease PE002224 (Quondong) at Latitude 32.869397° South, then south westerly, northerly, and north westerly passing through the following coordinate points:

Longitude (East)	Latitude (South)
139.983881	32.949759
139.983881	32.677172
139.866395	32.659921

Then northerly to the south eastern corner of the southern severance of Pastoral Lease PE002255 (Winnininnie); then northerly along the eastern boundary of that pastoral lease to the north western corner of Pastoral Lease PE002213 (Oulnina); then extending along the prolongation northerly of the western boundary of that pastoral lease to intersect the southern boundary of the Barrier Highway road corridor, also being a point on the southern boundary of Native Title Determination SAD6001/1998, SAD147/2010, SAD417/2015 Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim (SCD2018/002); then generally north easterly and generally northerly along the southern and eastern boundaries of that native title determination to a point at Latitude 31.476869° South, then north easterly back to the commencement point.

SCHEDULE 2

MAPS

Part A: Map of the External Boundaries of the Determination Area and the boundary between the Native Title Land and the Negative Determination Area

SCHEDULE 2

MAPS

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.

DCDBID	Hundred	Title Reference	Native Title Status	Native Title Status - Portion Remainder
F250191A102 (portion)	OH(CURNAMONA)	CL6160/319 PE002216	NT Extinguished	NT Exists
F250191A102 (portion)	OH(CURNAMONA)	CL6160/319 PE002216	NT Exists	NT Extinguished
F250504A119 (portion)	OH(CURNAMONA)	CL6164/289 PE002371	NT Extinguished	NT Exists
F250504A119 (portion)	OH(CURNAMONA)	CL6164/289 PE002371	NT Exists	NT Extinguished
F251775A42 (portion)	OH(CURNAMONA)	CL6182/777 PE002361	NT Extinguished	NT Exists
F251775A42 (portion)	OH(CURNAMONA)	CL6182/777 PE002361	NT Exists	NT Extinguished
H834800B1121	OH(CURNAMONA)	CL6162/839 PE002278	NT Exists
H834800B892	OH(CURNAMONA)	CL6179/286 PE002303	NT Exists
H834800B979	OH(CURNAMONA)	CL6179/994 PE002279	NT Exists
H834800B984	OH(CURNAMONA)	CL6181/747 PE002360	NT Exists
D30328A2002 (portion)	OH(OLARY)	CL6160/604 PE002263	NT Extinguished	NT Exists
D30328A2002 (portion)	OH(OLARY)	CL6160/604 PE002263	NT Exists	NT Extinguished
D30328A2003 (portion)	OH(OLARY)	CL6200/875 PE002465	NT Extinguished	NT Exists
D30328A2003 (portion)	OH(OLARY)	CL6200/875 PE002465	NT Exists	NT Extinguished
D34040A100	OH(OLARY)	CL6186/330 PE002525	NT Exists
D34040A102	OH(OLARY)	CR5750/442	NT Exists
D34040Q110	OH(OLARY)	CL6186/330 PE002525	NT Exists
D34040Q111	OH(OLARY)	CL6186/330 PE002525	NT Exists
D34040Q112	OH(OLARY)	CL6186/330 PE002525	NT Exists
F252584A125	OH(OLARY)	CL6194/510 PE002217	NT Exists
F36714A100	OH(OLARY)	CR5302/977	NT Exists
F36714A102	OH(OLARY)	CR5302/973	NT Exists
F36714A103	OH(OLARY)	CR5302/974	NT Exists
F36714A109	OH(OLARY)	CR5304/85	NT Exists
F36714A110	OH(OLARY)	CR5304/86	NT Exists
F36714A112	OH(OLARY)	CL6174/60 PE002206	NT Exists
F36714A72	OH(OLARY)	CR5302/972	NT Exists
F36714A94	OH(OLARY)	CR5302/977	NT Exists
F36714A96	OH(OLARY)	CR5302/977	NT Exists
F36714A97	OH(OLARY)	CR5302/977	NT Exists
H835400B1145 (portion)	OH(OLARY)	CL6179/983 PE002354	NT Extinguished	NT Exists
H835400B1145 (portion)	OH(OLARY)	CL6179/983 PE002354	NT Exists	NT Extinguished
H835400B1149	OH(OLARY)	CL6174/66 PE002367	NT Exists
H835400B1153 (portion)	OH(OLARY)	CL1298/29 PE002362	NT Extinguished	NT Exists
H835400B1153 (portion)	OH(OLARY)	CL1298/29 PE002362	NT Exists	NT Extinguished
H835400B1192 (portion)	OH(OLARY)	CL6209/679 PE002436	NT Extinguished	NT Exists
H835400B1192 (portion)	OH(OLARY)	CL6209/679 PE002436	NT Exists	NT Extinguished
H835400B1243	OH(OLARY)	CL6172/480 PE002198	NT Exists
H835400B650	OH(OLARY)	CL6207/261 PE002234	NT Exists
H835400B655 (portion)	OH(OLARY)	CL6171/861 PE002236	NT Extinguished	NT Exists
H835400B655 (portion)	OH(OLARY)	CL6171/861 PE002236	NT Exists	NT Extinguished
H835400B899	OH(OLARY)	CL6209/733 PE002223	NT Exists
H835400B912 (portion)	OH(OLARY)	CL6184/316 PE002537	NT Extinguished	NT Exists
H835400B912 (portion)	OH(OLARY)	CL6184/316 PE002537	NT Exists	NT Extinguished
H835400B932	OH(OLARY)	CL6209/714 PE002233	NT Exists
H835400B960	OH(OLARY)	CL6209/815 PE002213	NT Exists
H835400B961 (portion)	OH(OLARY)	CL6209/248 PE002214	NT Extinguished	NT Exists
H835400B961 (portion)	OH(OLARY)	CL6209/248 PE002214	NT Exists	NT Extinguished
H835400B962	OH(OLARY)	CL6207/261 PE002234	NT Exists
H835400B980	OH(OLARY)	CL6209/728 PE002222	NT Exists
H835400B981	OH(OLARY)	CL6187/48 PE002409	NT Exists
H835400B994	OH(OLARY)	CL6184/461 PE002538	NT Exists
H835400S1118	OH(OLARY)	CR5764/622	NT Exists
H835400S1119	OH(OLARY)	CR5759/733	NT Exists
H835400S1120	OH(OLARY)	CR5759/733	NT Exists
H835400S1121	OH(OLARY)	CR5769/173	NT Exists
H835400S1122	OH(OLARY)	CR5769/174	NT Exists
H835400S1123	OH(OLARY)	CR5769/175	NT Exists
H835400S1124	OH(OLARY)	CR5769/176	NT Exists
H835400S1125	OH(OLARY)	CR5769/177	NT Exists
H835400S1126	OH(OLARY)	CR5769/178	NT Exists
H835400S1127	OH(OLARY)	CR5769/179	NT Exists
H835400S1128	OH(OLARY)	CR5769/180	NT Exists
H835400S1132	OH(OLARY)	CR5764/625	NT Exists
H835400S1135	OH(OLARY)	CR5759/755	NT Exists
H835400S1282	OH(OLARY)	CR5339/268	NT Exists
H835400S1415	OH(OLARY)	CR5748/5	NT Exists
H835400S1416	OH(OLARY)	CR5748/6	NT Exists
H835400S1471	OH(OLARY)	CR5750/445	NT Exists
H835400S1490	OH(OLARY)	CR5764/626	NT Exists
H835400S9	OH(OLARY)	CR5757/312	NT Exists
T835401A111	OH(OLARY)	CR5764/628	NT Exists
T835401A112	OH(OLARY)	CR5764/629	NT Exists
T835401A125	OH(OLARY)	CR5764/630	NT Exists
T835401A129	OH(OLARY)	CR5769/186	NT Exists
T835401A141	OH(OLARY)	CR5769/187	NT Exists
T835401A143	OH(OLARY)	CR5769/188	NT Exists
T835401A145	OH(OLARY)	CR5769/189	NT Exists
T835401A147	OH(OLARY)	CR5769/190	NT Exists
T835401A149	OH(OLARY)	CR5769/191	NT Exists
T835401A151	OH(OLARY)	CR5769/192	NT Exists
T835401A153	OH(OLARY)	CR5769/193	NT Exists
T835401A154	OH(OLARY)	CR5769/194	NT Exists
T835401A155	OH(OLARY)	CR5769/195	NT Exists
T835401A156	OH(OLARY)	CR5769/196	NT Exists
T835401A157	OH(OLARY)	CR5769/197	NT Exists
T835401A158	OH(OLARY)	CR5769/198	NT Exists
T835401A159	OH(OLARY)	CR5769/199	NT Exists
T835401A161	OH(OLARY)	CR5769/200	NT Exists
T835401A171	OH(OLARY)	CR5769/201	NT Exists
T835401A173	OH(OLARY)	CR5769/202	NT Exists
T835401A25	OH(OLARY)	CR5764/627	NT Exists
T835401A27	OH(OLARY)	CR5769/182	NT Exists
T835401A55	OH(OLARY)	CR5754/401	NT Exists
T835401A74	OH(OLARY)	CR5769/183	NT Exists
T835401A78	OH(OLARY)	CR5769/184	NT Exists
T835401A86	OH(OLARY)	CR5769/185	NT Exists
T835401A95	OH(OLARY)	CR5754/401	NT Exists
T835401A96	OH(OLARY)	CR5754/401	NT Exists
T835401A97	OH(OLARY)	CR5754/401	NT Exists
T835401A98	OH(OLARY)	CR5754/401	NT Exists
T835401A99	OH(OLARY)	CR5754/401	NT Exists
T835405A1	OH(OLARY)	CR5764/638	NT Exists
T835405A10	OH(OLARY)	CR5748/14	NT Exists
T835405A11	OH(OLARY)	CR5748/15	NT Exists
T835405A12	OH(OLARY)	CR5748/16	NT Exists
T835405A13	OH(OLARY)	CR5748/17	NT Exists
T835405A14	OH(OLARY)	CR5748/18	NT Exists
T835405A16	OH(OLARY)	CR5748/19	NT Exists
T835405A17	OH(OLARY)	CR5748/20	NT Exists
T835405A18	OH(OLARY)	CR5764/642	NT Exists
T835405A19	OH(OLARY)	CR5764/643	NT Exists
T835405A2	OH(OLARY)	CR5764/639	NT Exists
T835405A22	OH(OLARY)	CR5748/21	NT Exists
T835405A23	OH(OLARY)	CR5748/22	NT Exists
T835405A25	OH(OLARY)	CR5748/23	NT Exists
T835405A26	OH(OLARY)	CR5748/24	NT Exists
T835405A27	OH(OLARY)	CR5748/25	NT Exists
T835405A28	OH(OLARY)	CR5748/26	NT Exists
T835405A29	OH(OLARY)	CR5748/27	NT Exists
T835405A3	OH(OLARY)	CR5748/9	NT Exists
T835405A32	OH(OLARY)	CR5748/28	NT Exists
T835405A33	OH(OLARY)	CR5748/29	NT Exists
T835405A34	OH(OLARY)	CR5748/30	NT Exists
T835405A35	OH(OLARY)	CR5748/31	NT Exists
T835405A36	OH(OLARY)	CR5748/32	NT Exists
T835405A37	OH(OLARY)	CR5748/33	NT Exists
T835405A38	OH(OLARY)	CR5748/34	NT Exists
T835405A39	OH(OLARY)	CR5748/35	NT Exists
T835405A4	OH(OLARY)	CR5748/10	NT Exists
T835405A40	OH(OLARY)	CR5748/36	NT Exists
T835405A41	OH(OLARY)	CR5748/37	NT Exists
T835405A42	OH(OLARY)	CR5748/38	NT Exists
T835405A43	OH(OLARY)	CR5748/39	NT Exists
T835405A44	OH(OLARY)	CR5748/40	NT Exists
T835405A45	OH(OLARY)	CR5748/41	NT Exists
T835405A46	OH(OLARY)	CR5748/42	NT Exists
T835405A47	OH(OLARY)	CR5748/43	NT Exists
T835405A48	OH(OLARY)	CR5748/44	NT Exists
T835405A49	OH(OLARY)	CR5748/45	NT Exists
T835405A5	OH(OLARY)	CR5748/11	NT Exists
T835405A50	OH(OLARY)	CR5748/46	NT Exists
T835405A51	OH(OLARY)	CR5748/47	NT Exists
T835405A52	OH(OLARY)	CR5748/48	NT Exists
T835405A54	OH(OLARY)	CR5748/49	NT Exists
T835405A55	OH(OLARY)	CR5748/50	NT Exists
T835405A56	OH(OLARY)	CR5748/51	NT Exists
T835405A57	OH(OLARY)	CR5748/52	NT Exists
T835405A58	OH(OLARY)	CR5748/53	NT Exists
T835405A59	OH(OLARY)	CR5748/54	NT Exists
T835405A6	OH(OLARY)	CR5748/12	NT Exists
T835405A60	OH(OLARY)	CR5748/55	NT Exists
T835405A61	OH(OLARY)	CR5748/56	NT Exists
T835405A62	OH(OLARY)	CR5748/57	NT Exists
T835405A63	OH(OLARY)	CR5748/58	NT Exists
T835405A64	OH(OLARY)	CR5748/59	NT Exists
T835405A65	OH(OLARY)	CR5748/60	NT Exists
T835405A66	OH(OLARY)	CR5748/61	NT Exists
T835405A67	OH(OLARY)	CR5748/62	NT Exists
T835405A68	OH(OLARY)	CR5748/63	NT Exists
T835405A69	OH(OLARY)	CR5748/64	NT Exists
T835405A7	OH(OLARY)	CR5748/13	NT Exists
T835405A70	OH(OLARY)	CR5748/65	NT Exists
T835405A71	OH(OLARY)	CR5748/66	NT Exists
T835405A72	OH(OLARY)	CR5748/67	NT Exists
T835405A73	OH(OLARY)	CR5748/68	NT Exists
T835405A74	OH(OLARY)	CR5748/69	NT Exists
T835405A75	OH(OLARY)	CR5748/70	NT Exists
T835405A76	OH(OLARY)	CR5748/71	NT Exists
T835405A8	OH(OLARY)	CR5764/640	NT Exists
T835405A9	OH(OLARY)	CR5764/641	NT Exists

SCHEDULE 4

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.

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

(a) minerals as defined in section 6 of the Mining Act 1971 (SA);

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

(c) a naturally occurring underground accumulation of a regulated substance as defined in section 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 section 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 section 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 earths 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 section 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 section 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 Part 2, Division 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 section 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.

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 and 4 and do not exist in any land or waters beyond 50 metres seaward of the Lowest Astronomical Tide as defined by Geoscience Australia Coastline Information Capture Program Australia 2016.

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

DCDBID	Hundred	Title Reference	Native Title Status	Native Title Status - Portion Remainder
F250191A102 (portion)	OH(CURNAMONA)	CL6160/319 PE002216	NT Extinguished	NT Exists
F250504A119 (portion)	OH(CURNAMONA)	CL6164/289 PE002371	NT Extinguished	NT Exists
F251775A42 (portion)	OH(CURNAMONA)	CL6182/777 PE002361	NT Extinguished	NT Exists
D30328A2002 (portion)	OH(OLARY)	CL6160/604 PE002263	NT Extinguished	NT Exists
D30328A2003 (portion)	OH(OLARY)	CL6200/875 PE002465	NT Extinguished	NT Exists
D30328A2004	OH(OLARY)	CT6007/186	NT Extinguished
D34040A106	OH(OLARY)	CT5316/802	NT Extinguished
D34040A108	OH(OLARY)	CR5752/722	NT Extinguished
D34040A116	OH(OLARY)	CL6186/330 PE002525	NT Extinguished
D40684A200	OH(OLARY)	CT5216/748	NT Extinguished
D40684A201	OH(OLARY)	CT5216/749	NT Extinguished
D40684A202	OH(OLARY)	CT5216/750	NT Extinguished
D40684A203	OH(OLARY)	CT5216/751	NT Extinguished
D40684A204	OH(OLARY)	CT5216/752	NT Extinguished
D79224A46	OH(OLARY)	CT6057/512	NT Extinguished
D79224Q43	OH(OLARY)	CT6057/511	NT Extinguished
D79224Q45	OH(OLARY)	CT6057/511	NT Extinguished
D80859A48	OH(OLARY)	CT6051/694	NT Extinguished
D80859A49	OH(OLARY)	CT6051/694	NT Extinguished
D80859A51	OH(OLARY)	CT6051/696	NT Extinguished
D80859A52	OH(OLARY)	CT6051/696	NT Extinguished
D80859Q50	OH(OLARY)	CT6051/695	NT Extinguished
D80859Q53	OH(OLARY)	CT6051/695	NT Extinguished
D80867A50	OH(OLARY)	CT6221/456	NT Extinguished
D80867A51	OH(OLARY)	CT6221/456	NT Extinguished
D80867A52	OH(OLARY)	CT6057/136	NT Extinguished
D80867A53	OH(OLARY)	CT6221/456	NT Extinguished
D80867A54	OH(OLARY)	CT6057/136	NT Extinguished
F104453A5	OH(OLARY)	CT5147/23	NT Extinguished
F104453A6	OH(OLARY)	CT5147/23	NT Extinguished
F199216A322	OH(OLARY)	CT5549/293	NT Extinguished
F200248A91	OH(OLARY)	CT5915/297	NT Extinguished
F200248A92	OH(OLARY)	CT5915/297	NT Extinguished
F200248A93	OH(OLARY)	CT5915/297	NT Extinguished
F200248A94	OH(OLARY)	CT5915/296	NT Extinguished
F200248A95	OH(OLARY)	CT5915/297	NT Extinguished
F209349A163	OH(OLARY)	CT5550/990	NT Extinguished
F209350A164	OH(OLARY)	CT5777/512	NT Extinguished
F209351A165	OH(OLARY)	CT5783/850	NT Extinguished
F209352A166	OH(OLARY)	CT5788/587	NT Extinguished
F209353A167	OH(OLARY)	CT5809/523	NT Extinguished
F209354A168	OH(OLARY)	CT5782/149	NT Extinguished
F214599A110	OH(OLARY)	CT6151/500	NT Extinguished
F215988A107	OH(OLARY)	CT5782/876	NT Extinguished
F218342A5	OH(OLARY)	CT5843/165	NT Extinguished
F251052A100	OH(OLARY)	CL6174/65 PE002398	NT Extinguished
F251333Q201	OH(OLARY)	CL6176/449 PE002200	NT Extinguished
F251689A110	OH(OLARY)	CL6181/578 PE002224	NT Extinguished
F251714A112	OH(OLARY)	CL6183/279 PE002208	NT Extinguished
F36714A1	OH(OLARY)	CR5302/975	NT Extinguished
F36714A10	OH(OLARY)	CR5302/975	NT Extinguished
F36714A101	OH(OLARY)	CR5302/978	NT Extinguished
F36714A104	OH(OLARY)	CR5988/385	NT Extinguished
F36714A105	OH(OLARY)	CT6221/456	NT Extinguished
F36714A107	OH(OLARY)	CR5774/658	NT Extinguished
F36714A108	OH(OLARY)	CT6221/456	NT Extinguished
F36714A11	OH(OLARY)	CR5302/975	NT Extinguished
F36714A113	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A114	OH(OLARY)	CT5885/778	NT Extinguished
F36714A115	OH(OLARY)	CR5304/87	NT Extinguished
F36714A12	OH(OLARY)	CL6196/846 OP017932	NT Extinguished
F36714A121	OH(OLARY)	CR5304/88	NT Extinguished
F36714A124	OH(OLARY)	CR5305/763	NT Extinguished
F36714A13	OH(OLARY)	CL6196/846 OP017932	NT Extinguished
F36714A14	OH(OLARY)	CL6196/846 OP017932	NT Extinguished
F36714A15	OH(OLARY)	CR5302/969	NT Extinguished
F36714A16	OH(OLARY)	CR5302/975	NT Extinguished
F36714A17	OH(OLARY)	CR5302/976	NT Extinguished
F36714A18	OH(OLARY)	CR5302/975	NT Extinguished
F36714A19	OH(OLARY)	CR5302/975	NT Extinguished
F36714A2	OH(OLARY)	CR5302/975	NT Extinguished
F36714A20	OH(OLARY)	CR5774/658	NT Extinguished
F36714A21	OH(OLARY)	CR5302/970	NT Extinguished
F36714A22	OH(OLARY)	CR5302/975	NT Extinguished
F36714A24	OH(OLARY)	CL6211/142 OP010127	NT Extinguished
F36714A25	OH(OLARY)	CL6211/142 OP010127	NT Extinguished
F36714A26	OH(OLARY)	CL6211/142 OP010127	NT Extinguished
F36714A27	OH(OLARY)	CL6211/142 OP010127	NT Extinguished
F36714A29	OH(OLARY)	CL6211/142 OP010127	NT Extinguished
F36714A3	OH(OLARY)	CR5302/975	NT Extinguished
F36714A34	OH(OLARY)	CL6174/60 PE002206	NT Extinguished
F36714A35	OH(OLARY)	CL6174/60 PE002206	NT Extinguished
F36714A36	OH(OLARY)	CL6174/60 PE002206	NT Extinguished
F36714A37	OH(OLARY)	CL6174/60 PE002206	NT Extinguished
F36714A38	OH(OLARY)	CL6174/61 OP005675	NT Extinguished
F36714A39	OH(OLARY)	CL6174/61 OP005675	NT Extinguished
F36714A4	OH(OLARY)	CR5302/975	NT Extinguished
F36714A40	OH(OLARY)	CL6174/61 OP005675	NT Extinguished
F36714A41	OH(OLARY)	CL6174/60 PE002206	NT Extinguished
F36714A42	OH(OLARY)	CL6174/61 OP005675	NT Extinguished
F36714A43	OH(OLARY)	CL6174/61 OP005675	NT Extinguished
F36714A44	OH(OLARY)	CL6174/61 OP005675	NT Extinguished
F36714A45	OH(OLARY)	CL6174/61 OP005675	NT Extinguished
F36714A46	OH(OLARY)	CL6174/61 OP005675	NT Extinguished
F36714A47	OH(OLARY)	CL6174/61 OP005675	NT Extinguished
F36714A48	OH(OLARY)	CL6174/62 OP007125	NT Extinguished
F36714A49	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A5	OH(OLARY)	CL6196/846 OP017932	NT Extinguished
F36714A50	OH(OLARY)	CL6174/62 OP007125	NT Extinguished
F36714A51	OH(OLARY)	CL6174/62 OP007125	NT Extinguished
F36714A52	OH(OLARY)	CL6174/64 OP004954	NT Extinguished
F36714A53	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A55	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A6	OH(OLARY)	CL6196/846 OP017932	NT Extinguished
F36714A60	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A61	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A65	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A66	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A67	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A68	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A69	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A7	OH(OLARY)	CL6196/846 OP017932	NT Extinguished
F36714A71	OH(OLARY)	CR5302/971	NT Extinguished
F36714A78	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714A8	OH(OLARY)	CR5302/975	NT Extinguished
F36714A9	OH(OLARY)	CR5302/975	NT Extinguished
F36714A92	OH(OLARY)	CL6210/752 OP004558	NT Extinguished
F36714A98	OH(OLARY)	CT6221/456	NT Extinguished
F36714Q116	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714Q117	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714Q118	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714Q119	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714Q120	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714Q122	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F36714Q123	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
F37353A6	OH(OLARY)	CL6186/330 PE002525	NT Extinguished
F37353A7	OH(OLARY)	CL6186/330 PE002525	NT Extinguished
H835400B1145 (portion)	OH(OLARY)	CL6179/983 PE002354	NT Extinguished	NT Exists
H835400B1153 (portion)	OH(OLARY)	CL1298/29 PE002362	NT Extinguished	NT Exists
H835400B1192 (portion)	OH(OLARY)	CL6209/679 PE002436	NT Extinguished	NT Exists
H835400B655 (portion)	OH(OLARY)	CL6171/861 PE002236	NT Extinguished	NT Exists
H835400B912 (portion)	OH(OLARY)	CL6184/316 PE002537	NT Extinguished	NT Exists
H835400B920	OH(OLARY)	CL6159/957 PE002485	NT Extinguished
H835400B961 (portion)	OH(OLARY)	CL6209/248 PE002214	NT Extinguished	NT Exists
H835400S1112	OH(OLARY)	CR5774/649	NT Extinguished
H835400S1113	OH(OLARY)	CR5764/621	NT Extinguished
H835400S1114	OH(OLARY)	CR5764/621	NT Extinguished
H835400S1131	OH(OLARY)	CR5764/624	NT Extinguished
H835400S1139	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
H835400S1140	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
H835400S1141	OH(OLARY)	CL6174/63 OP004539	NT Extinguished
H835400S1285	OH(OLARY)	CR5757/302	NT Extinguished
H835400S1578	OH(OLARY)	CT5398/784	NT Extinguished
H835400S1579	OH(OLARY)	CT5216/753	NT Extinguished
H835400S1580	OH(OLARY)	CT6100/910	NT Extinguished
H835400S1581	OH(OLARY)	CT5216/754	NT Extinguished
H835400S1582	OH(OLARY)	CT5398/863	NT Extinguished
H835400S1589	OH(OLARY)	CR5769/181	NT Extinguished
H835400S1594	OH(OLARY)	CT6007/183	NT Extinguished
H835400S257	OH(OLARY)	CR5774/648	NT Extinguished
H835400S345	OH(OLARY)	CR5757/301	NT Extinguished
H835400S394	OH(OLARY)	CL6200/875 PE002465	NT Extinguished
H835400S442	OH(OLARY)	CT5582/841	NT Extinguished
T835401A1	OH(OLARY)	CT5835/628	NT Extinguished
T835401A100	OH(OLARY)	CT5810/987	NT Extinguished
T835401A101	OH(OLARY)	CT5476/282	NT Extinguished
T835401A102	OH(OLARY)	CT5871/398	NT Extinguished
T835401A103	OH(OLARY)	CT5846/201	NT Extinguished
T835401A104	OH(OLARY)	CT5813/187	NT Extinguished
T835401A105	OH(OLARY)	CT5835/392	NT Extinguished
T835401A106	OH(OLARY)	CT5826/208	NT Extinguished
T835401A107	OH(OLARY)	CT5835/591	NT Extinguished
T835401A108	OH(OLARY)	CT5517/414	NT Extinguished
T835401A109	OH(OLARY)	CT5846/201	NT Extinguished
T835401A110	OH(OLARY)	CT5817/787	NT Extinguished
T835401A113	OH(OLARY)	CT5873/952	NT Extinguished
T835401A114	OH(OLARY)	CT5813/540	NT Extinguished
T835401A115	OH(OLARY)	CT6151/499	NT Extinguished
T835401A117	OH(OLARY)	CT5792/790	NT Extinguished
T835401A118	OH(OLARY)	CT5786/729	NT Extinguished
T835401A119	OH(OLARY)	CT6151/499	NT Extinguished
T835401A12	OH(OLARY)	CT5486/793	NT Extinguished
T835401A120	OH(OLARY)	CT5813/540	NT Extinguished
T835401A121	OH(OLARY)	CT5844/230	NT Extinguished
T835401A122	OH(OLARY)	CT5813/540	NT Extinguished
T835401A123	OH(OLARY)	CT5563/775	NT Extinguished
T835401A124	OH(OLARY)	CT5786/729	NT Extinguished
T835401A126	OH(OLARY)	CT5813/538	NT Extinguished
T835401A127	OH(OLARY)	CT5566/981	NT Extinguished
T835401A128	OH(OLARY)	CT5786/729	NT Extinguished
T835401A130	OH(OLARY)	CT5595/305	NT Extinguished
T835401A131	OH(OLARY)	CT5807/154	NT Extinguished
T835401A132	OH(OLARY)	CT5827/267	NT Extinguished
T835401A133	OH(OLARY)	CT5807/154	NT Extinguished
T835401A134	OH(OLARY)	CT5813/186	NT Extinguished
T835401A135	OH(OLARY)	CT5827/93	NT Extinguished
T835401A136	OH(OLARY)	CT6151/499	NT Extinguished
T835401A137	OH(OLARY)	CT5235/129	NT Extinguished
T835401A138	OH(OLARY)	CT5799/155	NT Extinguished
T835401A139	OH(OLARY)	CT6092/425	NT Extinguished
T835401A140	OH(OLARY)	CT5810/987	NT Extinguished
T835401A142	OH(OLARY)	CT5595/305	NT Extinguished
T835401A144	OH(OLARY)	CT5825/675	NT Extinguished
T835401A146	OH(OLARY)	CT5799/313	NT Extinguished
T835401A148	OH(OLARY)	CT5595/305	NT Extinguished
T835401A15	OH(OLARY)	CT6035/853	NT Extinguished
T835401A150	OH(OLARY)	CT5517/410	NT Extinguished
T835401A152	OH(OLARY)	CT5799/313	NT Extinguished
T835401A160	OH(OLARY)	CT5517/415	NT Extinguished
T835401A162	OH(OLARY)	CT5825/674	NT Extinguished
T835401A163	OH(OLARY)	CT5790/14	NT Extinguished
T835401A164	OH(OLARY)	CT5517/417	NT Extinguished
T835401A165	OH(OLARY)	CT510/42	NT Extinguished
T835401A166	OH(OLARY)	CT507/154	NT Extinguished
T835401A167	OH(OLARY)	CT5565/756	NT Extinguished
T835401A168	OH(OLARY)	CT5798/229	NT Extinguished
T835401A169	OH(OLARY)	CT5837/421	NT Extinguished
T835401A17	OH(OLARY)	CT5839/529	NT Extinguished
T835401A170	OH(OLARY)	CT5517/411	NT Extinguished
T835401A172	OH(OLARY)	CT5566/981	NT Extinguished
T835401A174	OH(OLARY)	CT5825/674	NT Extinguished
T835401A175	OH(OLARY)	CT5837/421	NT Extinguished
T835401A18	OH(OLARY)	CT5810/490	NT Extinguished
T835401A19	OH(OLARY)	CT5788/844	NT Extinguished
T835401A2	OH(OLARY)	CT5846/201	NT Extinguished
T835401A20	OH(OLARY)	CT5790/16	NT Extinguished
T835401A21	OH(OLARY)	CT5798/690	NT Extinguished
T835401A22	OH(OLARY)	CT5837/76	NT Extinguished
T835401A23	OH(OLARY)	CT5797/396	NT Extinguished
T835401A24	OH(OLARY)	CT5846/201	NT Extinguished
T835401A26	OH(OLARY)	CT5799/313	NT Extinguished
T835401A28	OH(OLARY)	CT5797/396	NT Extinguished
T835401A29	OH(OLARY)	CT5835/597	NT Extinguished
T835401A3	OH(OLARY)	CT5785/588	NT Extinguished
T835401A30	OH(OLARY)	CT5786/729	NT Extinguished
T835401A31	OH(OLARY)	CT5835/597	NT Extinguished
T835401A32	OH(OLARY)	CT5580/734	NT Extinguished
T835401A33	OH(OLARY)	CT5810/488	NT Extinguished
T835401A34	OH(OLARY)	CT5839/529	NT Extinguished
T835401A38	OH(OLARY)	CT5493/507	NT Extinguished
T835401A39	OH(OLARY)	CT5785/520	NT Extinguished
T835401A4	OH(OLARY)	CT5785/588	NT Extinguished
T835401A44	OH(OLARY)	CT5814/931	NT Extinguished
T835401A45	OH(OLARY)	CT5840/975	NT Extinguished
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REASONS FOR JUDGMENT

RAPER J:

1 By orders made today, a determination of native title under the Native Title Act 1993 (Cth) (NTA) has been made with respect to an application made on behalf of the Wilyakali people in respect of an area of land and waters in the mid-north-eastern area of South Australia which borders New South Wales.

2 The parties to this proceeding have reached agreement on the terms of a native title determination (proposed consent determination) for the areas of the land which are the subject of the application (determination area). The determination area is broadly described as approximately 10,343 km2 of land which abuts the south-eastern corner of the Adnyamathanha, Wilyakali, Ngadjuri determination area from about (but not including) Oulnina on the Barrier Highway (which forms the northern boundary of much of the claim).

3 As a consequence the parties have applied for consent orders and a consent determination of native title to be made under s 87 of the NTA.

4 These reasons explain why I make the determination in the form sought by the parties.

The application

5 On 8 February 2012, the applicants first lodged “Native Title Determination Application Claimant Application”, now SAD 89 of 2022 (formerly SAD 33 of 2012). This application covered extensive areas of land within South Australia on the western side of the South Australian/New South Wales border, and the external boundary of the claim area was initially described by the applicants as follows:

The South Australia/New South Wales border between GDA 94 coordinates 31°15’000 S / 141°00’000 E and 32°46’000 S/ 141°00’000 E determines the eastern boundary of the Wilyakali native title claim area. From its northeastern-most point at 31°15’000 S / 141°00’000 E the boundary moves in a south-westerly direction to approximately 31°30’000 S / 140°15’000 E where it meets the boundary of the Adnyamathanha People No. l Native Title Claim [SAD6001 /1998] at the south-eastern corner of Benagerie Station. It then follows the Adnyamathanha native title claim boundary in a south-easterly direction taking in the north-eastern corner of Yarramba Station, continuing south-easterly down to the Wompinie Homestead turn-off at approximately 32°00’000 S / 140°45’500 E where it veers south-westerly to approximately 32°07’600 S / 140°45’000 E at Mingary on the Barrier Highway. The boundary then continues along the Barrier Highway in a south-westerly direction to include the townships of Olary, Mannahill and Yunta to approximately 32°35’000 S / 139°33’000 E where it turns back in a south-easterly direction along the Yunta Creek and down to approximately 32°58’000 s / 140°00’000 E. The boundary then moves in an easterly direction to meet the southeastern-most corner of the claim area at the South Australia/New South Wales border at approximately 32°46’000 S / 141°00’000 E.

6 After filing this application, other applications were made. On 14 December 2018, the area covering the whole area of Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim (SAD 6001 of 1998) was determined by consent: Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993.

7 The area which was the subject matter of the Coulthard determination comprised a combination of the undetermined Adnyamathanha No 1 Native Title Determination Application (SAD 6001 of 1998), the whole of the Ngadjuri Native Title Determination Application (SAD 147 of 2010) and the whole of the Wilyakali No 2 Native Title Determination Application (SAD 417 of 2015).

8 At the time this claim was filed, it partially overlapped with the claim made by the Ngadjuri people the subject of proceedings in Branson on behalf of Ngadjuri Nation #2 Native Claim v State of South Australia [2023] FCA 715 (SAD 84 of 2022, formerly SAD 304 of 2011) (Ngadjuri Nation No 2 claim). Following negotiations between the Wilyakali and Ngadjuri people, it was agreed that their respective claims would be amended so as to eliminate any overlap between them.

9 After these developments, the application was amended and filed on 15 March 2021. The intention of this amendment was, and it did in fact, resolve any overlap by forming a common boundary between this application and the remainder of the former overlapping Ngadjuri Nation No 2 claim.

The determination area

10 The area which is the subject of the determination is as described in the written description given to it in Schedule 1. By general description it is a parcel of land in an inverted blocked L-shape which covers appropriately 10,343 km2 and abuts the south-eastern corner of the Adnyamathanha, Wiliyakali, Ngadjuri determination area from about (but not including) Oulnina on the Barrier Highway (which forms the northern boundary of much of the claim). It extends to the SA/NSW border and includes the whole of the following pastoral leases: Aroona West, Benda, Bundera, Canewood, Devonborough Downs, D’Lorah Downs, Eringa Park, Lake Dismal, Maldorky, Mundi Mundi, Pine Creek, Radium Hill, Taltabooka North, Tepco, Tikalina, Wadnaminga, Wawirra, and Wiawera; and portions of Bindarrah, Boolcoomatta, Kalkaroo, Manunda, Mulyungarie, Mutooroo, Netley Gap, Oakbank, Oulnina Park, Quandong, Tiverton, Wompinie and Yarumba.

11 The expansive area is broadly defined as Australian arid zone and includes dry, undulating hilly areas, low scrub land dominated by bluebush and salt bush, creeks and dams.

European settlement of the claim areas

12 By the mid to late 19th century, the determination area had been settled and comprised the North-East Pastoral District. A number of historical events at this time contextualised the movement of Wilyakali ancestors away from their traditional lands in South Australia to Poolamacca in the late 19th century (although noting this movement was consistent with the Wilyakali peoples’ traditional movement patterns). The historical events included the erection of fencing around the various stations which restricted the freedom of movement of the Wilyakali people. The fencing appears to have been, in part, a response to the cumulative effects of the devastating drought in the late 1880s–1890s, soil erosion and introduced species.

13 As anthropologist, Ms Sandra Jarvis, opined in her 2020 expert report:

Rabbits were well established in the region by the late 1800s subsequently reaching plague proportions. Drought and financial depression, combined with widespread soil erosion across the district caused by the uncontained grazing pressure of rabbits, resulted in eradication methods to control them and the increased presence of dingoes. In addition, the change from shepherding to fencing sheep into paddocks made them vulnerable to dingo predation. It was for this reason pastoralists quickly discovered that the only successful method of combating dingoes was the erection of substantial high netting fencing fences, poisoning and trapping.

14 The destruction of the land is apparent from the observations made in the Adelaide Observer, on 17 July 1897, when describing the area around Oulnina Station (the western tip of the inverted L-shape of the determination area):

Where there is not a skerrick remaining, where the ground is as bare as a macadamized road, it is doubtful whether the bush will ever recover. …At Oulnina some time ago Mr A Treloar [noted] …it would take many years to get the country back to its former state. …The fallacy of the idea that the 1888 leases are fully improved has long since demonstrated. …When Waukaringa was a thriving mining centre the several hundred inhabitants had the right to cut the scrub within a distance of fifteen miles of the town. This naturally led to the destruction of a large number of valuable trees in this particular locality. Thousands of valuable shrubs and trees owe their destruction to the rabbits.

…Outalpa is divided into 18 paddocks. …to make proper use of this country feed tanks and further subdivision are necessary. …Mr Kent [of Outalpa] said the rabbits which ate them out 3 years ago – they were present in thousands even at the beginning of the year – had nearly all perished owing to the drought. …Most of the rodents which survive the drought manage to do so by making back into the rough hills where they find the necessaries of life. But when spring decks the plain they venture forth again and renew their work of devastation. …Rabbits are migratory and it is very disheartening for one man, after eradicating the vermin as far as possible, to find millions of rabbits …sweeping across his country and eating all before them.

[Dog eradication; dog scalpers and ‘expert dog catchers’]

‘The dogs are terribly bad now’, so Mr Kent told us. …At the beginning of last summer 40,000 [rabbits] were killed in one month at one dam at Mutooroo. …Mr Kent of Outalpa expressed the opinion ‘…I give a man as much strychnine as he can take out and as many traps as he can look after, and although he represents that he is doing his utmost to suppress the dogs, they are still running in the paddock.

Evidence filed supportive of the application

15 The applicants filed their own evidence as well as expert anthropological evidence.

16 The lay evidence comprised the following affidavits from the members of the claim group:

(a) The affidavit of Mr Glen Stanley O’Donnell dated 20 October 2011.

(b) The affidavit of Ms Dulcie O’Donnell dated 20 October 2011.

17 The only expert anthropological report that was filed was that of Ms Sandra Jarvis dated 17 December 2020, titled “Response to Anthropology Report for the Wilyakali No.1 Native Title Claim”. However, in the parties’ submissions, they submitted that the applicants also relied upon a report of Ms Jarvis dated October 2020 (which was not filed with the Court), and that Ms Jarvis provided two additional written responses to questions raised by the State’s expert assessor. The State commissioned Mr Kim McCaul to assess the expert reports provided by the applicants.

18 It is apparent that the State has given careful consideration to the material provided by the applicants, sought further information from the applicants over time and also considered the expert evidence which no doubt contributed to the negotiation of and agreement with respect to native title rights and interests in relevant parts of the determination area. It also appears to have led to the negotiation of an indigenous land use agreement (the Wilyakali Settlement ILUA).

Whether the determination is within power

19 Specific consideration of the principles to be applied when determining whether the orders sought are within the power of the Court was given by Mortimer J (as her Honour then was) in Freddie v Northern Territory [2017] FCA 867 at [15]–[24], which are set out as follows:

15 In order to be satisfied that the orders sought are within the power of the Court, consideration must be given to other restrictions or requirements in the Native Title Act. For example, the area covered by the orders must not overlap with any other application for determination of native title (s 67(1)); similarly, the area covered by the orders cannot have been the subject of a previously approved determination of native title (s 68). Further, the orders sought will only be within power if they set out the details of the matters required by s 225 (see s 94A) and if they concern rights and interests which the Australian common law is able to recognise (s 223(1)(c)).

16 The Court’s function under s 87 is quite different from its function in a contested application for a determination of native title, and this difference has been confirmed in many authorities of this Court: see Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J), which has been endorsed many times; and see for example Thudgari People v State of Western Australia [2009] FCA 1334 at [25] (Barker J); Goonack v State of Western Australia [2011] FCA 516 at [25]-[26] (Gilmour J), in relation to s 87A; Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 at [27] (Barker J). In Lander v State of South Australia [2012] FCA 427 at [11], and by reference to Lovett, Mansfield J emphasised that the focus of the Court under s 87 is on the making of the agreement by the parties.

17 The Court’s function under s 87, and its discretion, must also be understood in the context of the Native Title Act’s emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that:

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.

(Emphasis added.)

18 The concept of “appropriateness” in s 87(1A) also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] (French J). The rights conferred are enduring legal rights, proprietary in nature and in recognising them through a determination, the Court must be conscious of their character. The nature of the rights informs considerations such as the clarity of the terms of the determination (as to the claim area, the nature of the native title rights and interests and the manner of affectation on other proprietary interests); the need for appropriate notification and then the free and informed consent of all parties; and finally the State’s agreement that there is a credible and rational basis for the determination proposed.

19 The discretionary evaluation of whether orders are appropriate is a wide one, but the Court must focus on the individual circumstances of each proposed determination: see Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 at [18] (North J).

20 I accept it is also important to see the exercise of the judicial power in s 87 in the context of the Court’s jurisdiction as a whole, and its foundational legislation, the Federal Court of Australia Act 1976 (Cth), and in particular s 37M and s 37N of that Act. In exercising the discretion under s 87, the Court should pursue the objectives there set out, of promoting “just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible”. See the observations of Jagot J in Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 at [12]; also her Honour’s similar observations in Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851 at [1] and [9] and Yaegl People #1 v Attorney General of New South Wales [2015] FCA 647 at [9]-[10].

21 Since the determination made by the Court must include the matters set out in s 225 of the Native Title Act, there must be some probative material against which the Court can assess whether those matters can be stated in a determination. The principal source will be the parties’ agreed position put to the Court in the proposed orders and determination setting out the matters required by s 225, together with an agreed statement of facts filed pursuant to s 87(8), joint submissions and any supporting documents such as an expert report. That is not to suggest an expert report is always necessary, but if one has been produced and it forms part of the material upon which the State (or Territory) has relied in agreeing to a determination, it is likely to be appropriate for such a report to be before the Court. Such reports, if filed and relied on by the Court, provide an opportunity for the Court to record at least some of the material establishing connection to the claim area in a publicly accessible form. However there is no need to provide the Court with all of the evidence of the primary facts substantiating native title. Again, that is because the premise of s 87, and the Native Title Act’s emphasis on conciliation, is that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 (at [9]) (Bennett J), cited with approval in Peterson v State of Western Australia [2013] FCA 518 at [22] (McKerracher J). See also Ward v State of Western Australia [2006] FCA 1848 at [8].

22 In Brown v Northern Territory of Australia [2015] FCA 1268 at [23], Mansfield J described the task to be undertaken by the Court in the following way:

The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J.

23 The State, in particular, comes to an agreement under s 87 only after discharging its public responsibilities to ensure the agreement is in the interests of the community it represents. This must involve, but it is not limited to, satisfaction by the State that there is a sufficient basis to put forward the agreement to the Court as one which is capable of satisfying the requirements of s 225 of the Native Title Act. A s 87 agreement may be reached on behalf of the State (or Territory), and other parties, without the level of proof required in a contested application. Inherent in parties’ agreement to resolve claims by settlement rather than litigation, as in other areas of the law, is a willingness to abide by an outcome without the exhaustive and detailed investigation that accompanies a trial of contested issues of fact and law. The public interest in an outcome of this kind is considerable: see Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26], Rares J.

24 The Court is entitled to rely on the processes established by a State (or Territory) for the assessment of claims to native title and, without abdicating its task of determining that the matters set out in s 225 are present in a particular application, is entitled to proceed on the basis the State (or Territory) has made a reasonable and rational assessment of the material to which it has access in deciding to enter into a s 87 agreement: see, in relation to a similar point with respect to s 223 of the Act, King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Keane CJ).

20 Section 87 of the NTA permits the Court to make a determination of native title consistent with a written agreement between the parties to a proceeding without holding a hearing if it is satisfied of a number of matters, which include:

(a) whether the notice period under s 66 of the NTA has ended;

(b) that the parties have reached agreement on the terms of order relating to the whole of the proceedings, a part of the proceedings or a matter arising out of the proceedings;

(c) the terms of the agreement have been reduced to writing, signed by and on behalf of the parties and filed with the Court; and

(d) the Court is satisfied that an order in, or consistent, with those orders would be within the power of the Court.

Consideration

21 I am satisfied that the preconditions to the exercise of the power under s 87 are met.

22 First, I am satisfied that the notification requirements prescribed by s 66 of the NTA have been met.

23 The Native Title Registrar was required to undertake a notification process in accordance with s 66 of the NTA (as applicable at the time). As part of this notification process, the Registrar was required to provide a copy of the application to the relevant State Minister (s 66(2)), and to other appropriate representative bodies (s 66(2A)), as well as to give notice to persons or bodies specified under s 66(3)(a), and to notify the public (s 66(3)(d)). The relevant notice for which each of those persons must be informed must include certain statements depending on the nature of the application. In this case, given it is a claimant application, the notice must state that, given there can only be one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Court, in making its determination, to take into account the person’s native title rights and interests in relation to the relevant area (s 66(10)(b)). In addition, a person who wants to become a party to the application must notify the Court in writing within three months of the notification day or, after that time, seek leave from the Court to become a party (s 66(10)(c)).

24 On 13 June 2012, the Native Title Registrar wrote to the Court and confirmed that the Registrar had given notice containing details of the application to the persons and bodies specified in s 66(3)(a) of the NTA.

25 The Registrar also confirmed that they had notified the public of the application in accordance with s 66(3)(d) of the NTA. In accordance with s 66(3)(b), the correspondence from the Registrar enclosed a copy of the notice provided to the persons and bodies specified in subs (3)(a), as well as the public notice specified in subs (3)(d). Both notices specified that any person or entity who wished to become a party to the application was required to apply to the Court to become a party by 26 September 2012 (as specified in s 66(10)(c)). In addition, both notices contained the statement specified in s 66(10)(b).

26 On 8 October 2012, following the closure of the notification period, the Court wrote to the applicants’ then-solicitors providing them with a party list.

27 Secondly, I am satisfied that the parties have reached agreement on the terms of the order relating to the whole of the proceedings.

28 I am satisfied that the area covered by the orders does not overlap with the area which is the subject of any other application for determination of native title (s 67(1)) or a previously approved determination of native title (s 68).

29 I have relied upon the parties’ submission that a thorough tenure assessment has been undertaken in this matter and for the purposes of consent orders. An agreement has been reached by the parties as to the effect on native title of the various tenures granted and acts done in the determination area. The consent orders record all areas over which native title can be recognised, including as a consequence of ss 47A and 47B of the NTA, together with those areas where native title has been extinguished.

30 The parties have submitted that following the resolution of the overlapping claims, this matter has been resolved by agreement between the parties in accordance with the State of South Australia’s Consent Determination Policy: Consent Determinations in South Australia: A Guide to Preparing Native Title Reports (2004) Crown Solicitor’s Office.

31 Thirdly, the agreement has been reduced to writing, signed by or on behalf of the parties, and filed with the Court. Signatories include those with interests in the determination area including Telstra Corporation Limited, Amplitel Pty Ltd, Magnetite Mines Ltd, Havilah Resources NL, Mutooroo Pastoral Co Pty Ltd, Worthing Properties Pty Ltd and Lodestone Mines Limited.

32 The agreement comprises the content of the proposed consent determination as well as a Settlement Indigenous Land Use Agreement (the Wilyakali Settlement ILUA). The State and the applicants agree that the proposed consent determination of native title will take effect upon the registration of the Wilyakali Settlement ILUA under Div 3 of Pt 2 of the NTA.

33 Under the terms of the ILUA, the State and the applicants have agreed, pursuant to s 24EB, to validate certain acts which may have been done invalidly in the determination area, and provides a process, as an alternative to Div 3 of Pt 2 of the NTA, pursuant to which the State may undertake certain future acts on native title land within the determination area once the ILUA is registered.

34 The ILUA further provides for compensation and benefits in full and final settlement of the State’s existing compensation liability pursuant to the NTA in relation to the determination area.

35 The consent determination and the ILUA are dependent on each other in that the determination describes the position after the adjustments agreed in the ILUA come into force upon registration by the National Native Title Tribunal (NNTT). For this reason, it is agreed between the parties that the consent determination as proposed only comes into effect once the ILUA has been successfully registered on the NNTT’s Register of ILUAs.

36 In the event that the ILUA is not registered within eight months of the date of the making of the determination, the consent determination provides for liberty to apply to the Court.

37 I will now consider whether the proposed orders and determination are within the power of the Court.

38 As part of considering whether the Court has jurisdiction to make the orders sought, consideration must be given with respect to the NTA requirements, including whether the Wilyakali people comprise a group in relation to land and waters where the preconditions of s 223 are satisfied, which comprise as follows:

223 Native title

Common law rights and interests

(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

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

Statutory rights and interests

(3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.

Subsection (3) does not apply to statutory access rights

(3A) Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

Case not covered by subsection (3)

(4) To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

(a) in a pastoral lease granted before 1 January 1994; or

(b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.

39 The preconditions of this section have been considered extensively by the High Court, most notably in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; 214 CLR 422. As submitted by the parties, a threshold requirement for a successful native title determination application is that the evidence demonstrates that there is a recognisable group or society that presently recognises and observes traditional laws and customs in relation to the determination area. In defining that group or society, the following must also be evident:

(a) that they are, or are part of, a society united in and by their acknowledgement and observance of a body of accepted laws and customs;

(b) that the present-day body of accepted laws and customs of the society, in essence, is the same body of laws and customs acknowledged and observed by the ancestors of the claimants or a permissible adaptation thereof; and

(c) that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty and that the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs: Risk v Northern Territory [2006] FCA 404 at [8], [802]–[811]; see also Yorta Yorta at [49]–[56]; [86]–[89].

40 I am satisfied that the preconditions of s 223 have been met (for the reasons set out at paragraphs [47]–[59] below).

41 Section 225 of the NTA then sets out what a determination of native title must include. Section 225 provides as follows:

225 Determination of native title

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

(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.

Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.

42 Section 94A of the NTA requires that a determination made by the Court must set out the details of the matters mentioned in s 225 of the NTA.

43 I am satisfied that the requirements of s 225 have been met, by reason of the following facets of the consent determination :

(a) the external boundaries of the determination area are described (Schedule 1) and set out with particularity those areas where native title exists (Native Title Land) (paragraphs 7–8) and those areas where native title is extinguished (paragraph 9);

(b) there is specification, in paragraph 10, of the group of native title holders and the criteria by which they have group membership: s 225(a);

(c) the nature and extent of the native title rights and interests in the determination area is set out in paragraph 11. Paragraphs 12–14 describe material limitations on the exercise of those native title rights and interests: s 225(b);

(d) the nature and extent of other interests in the Native Title Land is set out in paragraph 15: s 225(c);

(e) the relationship between the native title rights and interests in paragraph 11 and those other rights and interests are set out in paragraph 16: s 225(d); and

(f) the native title rights and interests are recognised to be non-exclusive in paragraph 11 (subject to paragraphs 12, 13 and 14 of the Determination): s 225(e).

44 The Court is required to be satisfied ultimately that it is “appropriate” to make a proposed determination. This arises from the fact that a determination of native title, even where it is made by consent of the parties, not only binds the parties but the entire world: Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [22].

45 I am satisfied that it is appropriate to make the proposed orders and determination.

46 I am satisfied that the terms of the proposed determination of native title are clear (as to the determination area, the nature of the native title rights and interests, the recognised nature and extent of other interests in the determination area and how they may co-exist).

47 The Wilyakali people have been recognised in the Coulthard native title determination (referred to above). Furthermore, the evidence referred to above (including the extensive anthropological evidence) provides a probative basis for the applicants making the proposed determination of native title.

48 The evidence satisfies me that the Wilyakali as a sub-group of the Regional Paakantyi Group are defined by broad cognatic descent from their ancestors who owned and occupied the determination area at sovereignty and early contact, and from ‘known’ named ancestors belonging to more recent history.

49 The members of the claim group can demonstrate their direct link through descent to Wilyakali named ancestors to be the primary land owners of the determination area according to the wider Paakantyi Society’s traditional laws and customs.

50 The claimant group can demonstrate that they are descendants (including by adoption) of named apical ancestors Mr Jack Tyler and his niece Ms Minnie Crozier (Bates), Ms Mary Walgu and Mr Outalpa Dick who were descendants of Wilyakali ancestors identified in the record as occupying in the determination area prior to white settlement in 1836. The members of the claim group identify as Wilyakali and are recognised by the other Native Title Holders under those traditional laws and customs as having rights and interests in the determination area.

51 The experts identified early anthropological records that locate Wilyakali people at or geographically close from Oulnina to the SA/NSW border and includes the whole of the following pastoral leases: Aroona West, Benda, Bundera, Canewood, Devonborough Downs, D’Lorah Downs, Eringa Park, Lake Dismal, Maldorky, Mundi Mundi, Pine Creek, Radium Hill, Taltabooka North, Tepco, Tikalina, Wadnaminga, Wawirra, and Wiawera; and portions of Bindarrah, Boolcoomatta, Kalkaroo, Manunda, Mulyungarie, Mutooroo, Netley Gap, Oakbank, Oulnina, Oulnina Park, Quandong, Tiverton, Wompinie, and Yarumba.

52 The agreed boundary with the Ngadjuri reflects the compromise reached for resolution of the formerly overlapping claims and while it does not precisely follow any topographical feature the agreed boundary ensures that certain areas of significance to the Wilyakali people are included in their determination area. This does not prevent a determination being made here by consent of all the parties, providing there is evidence that the criteria under ss 223(1) and (2) of the NTA are met for the proposed determination area.

53 I am satisfied that there has been substantially uninterrupted observance of traditional laws and customs since sovereignty. The State and the Court accepted in Coulthard that the Wilyakali people exercise traditional laws and customs which continue to have a vitality in contemporary society.

54 As submitted by the parties, members of the contemporary Wilyakali group with the proposed determination area have this connection through their laws and customs. Although a number of claimant families live outside of the claim area, some ancestors worked on pastoral leases in the determination area and the current group members have provided evidence supporting their continuing connection through activities undertaken in accordance with traditional laws and customs in and across the area including:

speaking for and taking responsibility for country;

camping and visiting country;

sharing cultural knowledge about sites and traditions;

hunting and gathering and sharing resources;

spiritual practices such as smoking ceremonies; and

knowledge and teaching of Mura (dreamings) relating to the determination area, including Eaglehawk and Crow and Bronze-winged Pigeon (Marnpi).

55 This exemplifies evidence of land-based oral traditions; namely details of Wilyakali Mura stories (Dreaming), particular access rules and knowledge regarding sites which continue to be observed. The evidence is supportive that the proposed determination area falls within traditional Wilyakali country. Ms Jarvis, in her report in 2020, referred to the evidence of many Wilyakali people including vivid accounts of Ms Maureen O’Donnell (now deceased), the mother of Ms Dulcie O’Donnell and Mr Glen O’Donnell. Ms Maureen O’Donnell described her childhood, being shown and attending sacred sites and being taught and then retelling and teaching the Dreaming stories to her children and grandchildren. The evidence supports the conclusion that there are normative rules and laws which are traditionally-based.

56 I am satisfied that this evidence demonstrates that, despite the unfortunate fact of some cultural losses which have occurred since sovereignty, there is sufficient basis to accept for the purposes of a consent determination that the system of traditional laws and customs presently observed by the Wilyakali people provide them a relevant connection to the proposed determination area.

57 The rights and interests to be recognised are set out in paragraph 11 of the consent determination.

58 These rights and interests are consistent with the rights and interests that would have been observed traditionally. They are also consistent with rights recognised in the earlier Adnyamathanha, Ngadjuri and Wilyakali overlap determination and elsewhere in South Australia.

59 It was submitted by the State that it is satisfied that the native title rights and interests claimed arise from the Native Title Holders’ traditional laws and customs and that they have evolved from the native title rights and interests as they were likely to have been at sovereignty. This is because:

(a) there is evidence that a number of Wilyakali people continue to have a physical connection with the proposed determination area and continue to access this area for traditional purposes;

(b) a number of claimants continue to access the resources of the area. People continue to camp in key places throughout the claim area; and

(c) the Wilyakali people have demonstrated knowledge about Wilyakali country and its culturally significant sites and stories.

60 In the joint submissions, the applicants and the State submitted the following (demonstrative of the appropriateness of making the proposed determination):

(a) all parties save for Lodestone Mines Limited are legally represented. However, Lodestone Mines has not raised any concerns in relation to the making of the consent determination.

(b) the parties have agreed to the nature and extent of the applicants’ and other interests in relation to the determination area.

(c) the State has played an active role, not only in the negotiation of the consent determination, but the other related determinations. The State acts on behalf of the community generally having regard to the requirements of the NTA and having conducted its own assessment process, in accordance with the Policy, is satisfied that the determination is justified in all the circumstances.

Section 55 requirements

61 Section 55 of the NTA requires that if the Court proposes to make an approved determination of native title and the determination is that native exists, the Court must, at the same time as, or as soon as practicable after it makes the determination, make such determinations as required under ss 56 (concerning holding the native title on trust) or 57 (dealing with the non-trust functions of prescribed bodies corporate). Proposed order 17 is to the effect that native title is not to be held on trust. Accordingly, s 57(2) requires that certain steps must be taken to determine which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions in s 57(3).

62 The parties seek a determination that the “Wilyakali Native Title Aboriginal Corporation” be such a body. That agreed position is supported by an affidavit of Ms Leonora Jamille Aiyana Herweijer. In her affidavit, she deposes that the Wilyakali claim group, at a meeting in Broken Hill NSW on 1 and 2 April 2023, nominated the Wilyakali Native Title Aboriginal Corporation to be their prescribed body corporate and authorised that body as being the body for the proposed determination. On 14 August 2023, that body was registered by the Office of the Registrar of Indigenous Corporations as the Wilyakali Native Title Aboriginal Corporation ICN 10042. Ms Herweijer wrote to, and received consent and/or no objection from, the other parties to this matter that proposed order 18 include the full title of the prescribed body including the ICN number.

63 As a consequence, pursuant to s 57(2)(b), I determine that the Wilyakali Native Title Aboriginal Corporation ICN 10042 is to be a prescribed body corporate to perform the functions prescribed under s 57(3) of the NTA.

64 For these reasons, I am satisfied that it is appropriate to make the proposed orders and the proposed determination of native title.

Conclusion

65 I will make the orders proposed by the parties and I will make a determination of native title as proposed by the parties.

66 By making these orders and the determination, I note that the determination is not creating but rather recognising, under the Australian legal system, the Wilyakali peoples’ long-held native title in this land, according to their traditional laws and customs which existed long before British sovereignty.

67 The Court recognises the many parties involved in the making of this agreement and commends its conclusion by agreement.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.

Associate:

Dated: 28 August 2023

SCHEDULE OF PARTIES

	SAD 89 of 2022
Respondents
Respondent:	HAVILAH RESOURCES NL
Respondent:	LODESTONE MINES LIMITED
Respondent:	MAGNETITE MINES LIMITED
Respondent:	AMPLITEL PTY LTD
Respondent:	TELSTRA CORPORATION LIMITED

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