Agius v State of South Australia (No 6)

In Agius v State of South Australia (No 6), the Federal Court considered the application by the Kaurna People for a consent determination under the Native Title Act 1993 (Cth) regarding native title over a specified area. The Kaurna People, represented by the applicant, sought both a negative determination, asserting the absence of native title, and a positive determination, recognising native title rights and interests over certain lands and waters. The State of South Australia was the primary respondent, with other respondents including entities with interests in the land.

The court was tasked with determining whether the requirements of section 87 of the Native Title Act had been satisfied, particularly whether the negative determination was appropriate given the circumstances. The court also had to consider the requirements for a negative determination and whether it was appropriate to make the orders as proposed by the parties. The key issues revolved around the appropriateness of the negative determination in light of the extensive evidence gathered and the agreement of all parties involved, including the claim group.

In making its decision, the court found that the Kaurna people's claim group had endorsed the proposed negative determination after receiving advice from experienced counsel and experts. The court noted the significant hurdles the Kaurna people would face in a full trial, and the benefits of certainty provided by the negative determination. The court was satisfied that the negative determination was appropriate, as it would provide substantial certainty regarding land title status. The court also acknowledged the agreement on an Indigenous Land Use Agreement (ILUA), which was not a legal prerequisite but was part of the comprehensive agreement between the parties.

The court issued a determination of native title in the terms set out in the order. The determination would take effect upon the registration of the ILUA on the Register of Indigenous Land Use Agreements. If the ILUA was not registered within six months, the matter would be listed for further directions. The parties were granted liberty to apply to a single judge for various reasons, including the potential non-registration of the ILUA and the need to establish the precise location and boundaries of specific lands and waters. Each party was ordered to bear its own costs.