FEDERAL COURT OF AUSTRALIA

Weetra on behalf of the Nauo People v State of South Australia (No 2) [2024] FCA 1077

ORDERS

THE COURT NOTES THAT:

A.    Native Title Determination Application No SAD 188 of 2016 (Nauo #2 Application) was filed in the Federal Court of Australia on 21 June 2016 and an amended application was filed with leave of the Court on 8 December 2021.

B.    The Applicant, the State of South Australia and the other respondents have now reached an agreed settlement of the Nauo #2 Application without the need to proceed to trial.

C.    The terms of the agreed settlement are recorded in:

(a)    an Indigenous Land Use Agreement between the Applicant, the State and the Nauo Aboriginal Corporation ICN 9948 (Nauo #2 Settlement ILUA); and

(b)    agreed terms of a proposed order of the Court in relation to a determination of native title in respect of the Nauo #2 Application.

D.    The Nauo #2 Settlement ILUA provides, among other matters, 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.

E.    The determination of native title made pursuant to these orders will take effect upon the registration of the Nauo #2 Settlement ILUA under Div 3 of Pt 2 of the Native Title Act 1993 (Cth) (NTA).

F.    The Applicant and the State have carried out a comprehensive analysis of the tenure records for the Nauo #2 Application areas. The tenure position reflected in this determination and the Nauo #2 Settlement ILUA represents a negotiated outcome that has been agreed between the parties.

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

H.    The parties acknowledge that, when the determination takes effect, the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the Native Title Holders for the Native Title Land.

BEING SATISFIED that a determination in the terms sought by the parties would be within the power of the Court and it appearing to the Court appropriate to do so pursuant to s 87 of the NTA:

THE COURT ORDERS THAT:

1.    There be a determination of native title in the Nauo #2 Application in the terms set out at paragraphs 5 to 19 below (the Determination).

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

3.    In the event that the Nauo #2 Settlement ILUA is not registered on the Register of Indigenous Land Use Agreement within eight months of the date of this Order, or such other later time as the Court may order, the matter is to be listed for further directions.

4.    The Applicant, the State or any other respondent have liberty to apply on 14 days’ notice to a single judge of the Court:

(a)    if that party considers it unlikely that the Nauo #2 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.

THE COURT DETERMINES THAT:

Interpretation & Declaration

5.    In this Determination, including its schedules:

(a)    unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Pt 15 of the NTA;

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

(c)    Native Title Holders has the meaning given in paragraph 11 of these orders;

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

(e)    ‘Natural Resources’ means:

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

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

(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);

(f)    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 #2 Application as described in Schedule 1.

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

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

8.    Section 47B of the NTA applies to those parcels or parts of parcels described in Schedule 4. The prior extinguishment of native title over those areas is disregarded for the purpose of this Determination and native title exists in those parcels or parts of parcels in accordance with the terms of these orders.

9.    In accordance with the agreement recorded in the Nauo #2 Settlement ILUA, native title exists, subject to the terms of these orders, in adjacent land and subjacent land within the Determination Area that is vested in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA), including the areas identified in Schedule 5 but excluding those areas identified in Schedule 6.

Areas within Determination Area where native title does not exist by virtue of extinguishment

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

Native Title Holders

11.    Under the traditional laws and customs of 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).

Other Interests and Relationship with Native Title

16.    The nature and extent of other interests in the Native Title Land are:

(a)    the interests of the Crown in right of the State of South Australia;

(b)    the interests of the Crown in right of the Commonwealth of Australia;

(c)    in relation to reserves as defined in the National Parks and Wildlife Act 1972 (SA) and wilderness protection areas and wilderness protection zones as defined in the Wilderness Protection Act 1992 (SA):

(i)    the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA) and the Wilderness Protection Act 1992 (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 the Wilderness Protection Act 1992 (SA); and

(iii)    the rights and interests of the public to use and enjoy those reserves, wilderness protection areas and wilderness protection zones consistent with the National Parks and Wildlife Act 1972 (SA) and the Wilderness Protection Act 1992 (SA) ;

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

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

(f)    interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power including, but not limited to, rights and interests granted or recognised pursuant to the Crown Land Management Act 2009 (SA), the Crown Lands Act 1929 (SA), the Native Vegetation Act 1991 (SA), the Fisheries Management Act 2007 (SA), the Marine Parks Act 2007 (SA), the Coast Protection Act 1972 (SA), the Landscape South Australia Act 2019 (SA), the Mining Act 1971 (SA) and the Petroleum and Geothermal Energy Act 2000 (SA), all as amended from time to time;

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

(h)    the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;

(i)    the rights and interests of the Australian Fisheries Management Authority in relation to plans of management made under the Fisheries Management Act 1991 (Cth), including for the Southern Bluefin Tuna Fishery, the Western Tuna and Billfish Fishery, and 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 #2 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:

A.    to inspect land;

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

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

(iii)    for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the 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 and interests of each of the District Council of Lower Eyre Peninsula and the City of Port Lincoln in their relevant local government areas in the Native Title Land:

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

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

(iii)    in relation to dedicated land placed under its care, control and management pursuant to the Crown Lands Act 1929 (SA) or the Crown Land Management Act 2009 (SA).

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

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

(a)    to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests;

(b)    the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of the NTA or the Native Title (South Australia) Act 1994 (SA), do not extinguish them;

(c)    in relation to the land and waters set out in Schedule 4, the non-extinguishment principle applies in relation to the grant or vesting of the land or the creation of any other prior interest in the land.

AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS:

18.    The native title is to be held on trust.

19.    The Nauo Aboriginal Corporation RNTBC (ICN 9948) is to:

(a)    be the prescribed body corporate for the purposes of ss 56(2) and 56(3) of the NTA; and

(b)    perform the functions mentioned in s 57(1) 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

External boundary description of the Determination Area

Commencing at a point being the intersection of a line 10 metres seaward of Lowest Astronomical Tide with a straight line between Longitude 135.400967 East, Latitude 34.817477 South and Longitude 135.627920 East, Latitude 34.812759 South; then easterly, north-easterly and northerly in straight lines passing through the following points:

Then north-westerly in a straight line towards the point Longitude 135.674630 East, Latitude 34.742974 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 Barngarla Native Title Claim Determination Area (SCD2016/001)] [being along a portion of the southern portion of the external boundary of native title claim Nauo (SAD6021/1998)].

Then south-easterly along the south-western boundary of the north-eastern portion of Section 39, Hundred of Uley; south-easterly and easterly along the south-western and southern boundaries of the north-eastern portion of Section 38, Hundred of Uley; southerly and easterly along the western and southern boundaries of Section 642, Hundred of Lincoln; generally northerly along the eastern boundary of said Section 642 to its intersection with the prolongation westerly of the southern boundary of Section 495, Hundred of Lincoln; easterly along said prolongation to the south-western-most corner of Section 495, Hundred of Lincoln; easterly and generally north-easterly along the southern and eastern boundaries of said Section 495 to an eastern corner of said Section 495 closest to the south-western-most corner of Section 535, Hundred of Lincoln; easterly in a straight line to the south-western-most corner of Section 535, Hundred of Lincoln; easterly along the southern boundary of said Section 535; southerly and south-easterly along the western and southern boundaries of Section 95, Hundred of Lincoln; south-easterly along the southern boundary of Section 191, Hundred of Lincoln to the southern-most corner of said Section 191; south-easterly to the north-western-most corner of Section 467, Hundred of Lincoln; generally easterly, generally north easterly, south-westerly and south-easterly along the northern and eastern boundaries of Section 467, Hundred of Lincoln to the south-eastern-most corner of said Section 467; south-easterly in a straight line to the closest corner of Section 669, Hundred of Lincoln; south-easterly along a north-eastern boundary of Section 669, Hundred of Lincoln and along the prolongation of said boundary to its intersection with a line 10 metres seaward of Lowest Astronomical Tide [being along a portion of the southern portion of the external boundary of Barngarla Native Title Claim Determination Area (SCD2016/001)].

Then along said prolongation to its intersection with a line 50 metres seaward of Lowest Astronomical Tide [being the coastal boundary commencement point].

Then then generally south-westerly, generally north-easterly, generally southerly, generally north-westerly, generally southerly, generally westerly and 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 Fishery Bay enclosed by a straight line extending from Longitude 135.690097 East, Latitude 34.913571 South to Longitude 135.685118 East, Latitude 34.918346 South;

to the point of commencement.

Data Reference and source

Cadastral and Lowest Astronomical Tide data sourced from Attorney-General’s Department (19 April 2022).

Reference datum

Geographical coordinates are referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees.

Use of Coordinates

Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographical data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey.

SCHEDULE 2

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

SCHEDULE 2

Part B: Maps depicting Native Title Land

SCHEDULE 3

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

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

SCHEDULE 4

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

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

SCHEDULE 5

Areas where native title exists pursuant to the Nauo Settlement ILUA

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

SCHEDULE 6

Areas where native title does not exist

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

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 earth's surface, is not a natural reservoir;

(g)    thermal energy contained in a hot or natural spring is not geothermal energy as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA);

(h)    the absence from this Order of any reference to a natural reservoir or a naturally occurring accumulation of a regulated substance, as those terms are defined in 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.