Lake Torrens Overlap Proceedings (No 3)
[2016] FCA 899
•9 August 2016
FEDERAL COURT OF AUSTRALIA
Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899
File number: SAD 90 of 2009 Judge: MANSFIELD J Date of judgment: 9 August 2016 Catchwords: NATIVE TITLE – multiple overlapping applications for native title – where findings have been made in favour of each claimant group in respect of an area of land and waters immediately adjacent to and surrounding the claim area – where it is accepted that each claimant group acknowledges and observes a body of traditional laws and customs under which that group possesses rights and interests in and had a connection with an adjacent area of land and waters – whether it is open to the Court to make a determination that two separate claimant groups together as one composite native title claim group have shared common rights – consideration of procedural requirements for claimant application – significance of authorisation procedures
NATIVE TITLE – connection – whether rights and interests possessed by any of the three groups, extend to and include all of, or any part of, the claim area – where the claim area is a salt lake not suitable for long term occupation – where there is limited evidence of the historical or contemporary physical use of the claim area – requirement that the Court be satisfied that, the traditional rights and interests (once established) relate to the particular area under consideration – circumstances where the Court may draw inferences in favour of a claimant group in respect of substantial maintenance of connection from sovereignty
NATIVE TITLE – evidence – use of evidence concerning use of areas adjacent to the claim area – when evidence of use of areas adjacent to the claim area will be inconsistent with prior determinations of native title – use of ethnographic evidence
NATIVE TITLE – proclamation and vesting of national park – category D past act – non-extinguishment principle – consequences of the exercise of Ministerial powers dependent on the exercise of those powers – vesting of the land not wholly inconsistent with some native title rights and interests continuing to exist
Legislation: Native Title Act 1993 (Cth)
Federal Court of Australia Act 1976 (Cth)
Racial Discrimination Act 1975 (Cth)
Mining Act 1971 (SA)
Opal Mining Act 1995 (SA)
National Parks and Wildlife Act 1972 (SA)
Native Title (South Australia) Act 1994 (SA)
Land Act 1933 (WA)
Cases cited: Starkey v State of South Australia [2014] FCA 924
Adnyamathanha No 1 Native Title Claim Group v South Australia (No 2) [2009] FCA 359
Doss v State of South Australia [2012] FCA 519
Croft v State of South Australia (2016) 325 ALR 213
Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724
Coulthard v State of South Australia [2014] FCA 124
McKenzie v South Australia (2005) 214 ALR 214
Kokatha People v State of South Australia [2007] FCA 1057
Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195
Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants (ERD 231 of 2010)
Western Australia v Ward (2002) 213 CLR 1
Yorta Yorta v Victoria (2002) 214 CLR 422
Commonwealth v Yarmirr (2001) 208 CLR 1
Mabo v Queensland (No 2) (1992) 175 CLR 1
Western Australia v Ward (2000) 99 FCR 316
Daniel v Western Australia (2004) 208 ALR 51
Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31
De Rose v South Australia [2002] FCA 1342
Yarmirr v Northern Territory (1998) 82 FCR 533
Griffiths v Northern Territory (2007) 165 FCR 391
Bennell v Western Australia (2006) 153 FCR 120
Bodney v Bennell (2008) 167 FCR 84
Daniel v Western Australia (2004) 208 ALR 51
CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67
Daniel v Western Australia [2003] FCA 666
Daniel v State of Western Australia [2005] FCA 536
Banjima People v State of Western Australia (2015) 231 FCA 456
Commonwealth of Australia v Clifton [2007] FCAFC 190
Anikin v Sierrai (2004) 79 ALJR 452
Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171
Starkey v South Australia [2011] SASC 34
Western Australia v Brown 253 CLR 507
Dates of hearing: 21 October 2015; 26-29 October 2015; 2-5 November 2015; 9-13 November 2015 and 17-18 December 2015;
29 February 2016; 1 March 2016; 30-31 March 2016Date of last submissions: 31 March 2016 Registry: South Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 820 Counsel for the First Applicant: V Hughston SC with C Evans Solicitor for the First Applicant: South Australian Native Title Services Ltd Counsel for the Second Applicant: M Roder SC with D Billington Solicitor for the Second Applicant: Norman Waterhouse Counsel for the Third Applicant: T McAvoy SC and D O’Gorman SC with L Goodchild Solicitor for the Third Applicant: Teitzel & Partners Counsel for the First Respondent: D O’Leary with P Tonkin Solicitor for the First Respondent: Crown Solicitor’s Office (SA) Counsel for the Second Respondent: M Lyndon-James Solicitor for the Second Respondent: Ashurst Counsel for the Third Respondent: J Waters and K Bickford, L Owler by leave Solicitor for the Third Respondent: McDonald Steed McGrath Counsel for the Fourth to Sixth Respondents: The Fourth to Sixth Respondents did not appear Counsel for the Seventh Respondent: A Brookman Solicitor for the Seventh Respondent: Piper Alderman ORDERS
SAD 90 of 2009 BETWEEN: ANDREW STARKEY and JOYLENE THOMAS ON BEHALF OF THE KOKATHA PEOPLE
First Applicant
MICHAEL ANDERSON, ANTHONY CLARK, MARK McKENZIE SNR, DEIDRE McKENZIE, BEVERLY PATTERSON and ANGELINA STUART ON BEHALF OF THE ADNYAMATHANHA PEOPLE
Second Applicant
ERIC PAIGE, LORRAINE BRISCOE, HARRY DARE, JEANNE MILLER and LINDA DARE ON BEHALF OF THE BARNGARLA PEOPLE
Third Applicant
AND: STATE OF SOUTH AUSTRALIA
First Respondent
BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD
Second Respondent
KELARAY PTY LTD
Third RespondentOZ EXPLORATION PTY LTD
Fourth RespondentOZ MINERALS CARRAPATEENA PTY LTD
Fifth RespondentOZM CARRAPATEENA PTY LTD
Sixth RespondentDOUGLAS MAXWELL GREENFIELD
Seventh Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
9 AUGUST 2016
THE COURT ORDERS THAT:
1.The application by Andrew Starkey and Joylene Thomas on behalf of the Kokatha People is dismissed.
2.The application by Michael Anderson, Anthony Clark, Mark McKenzie Snr, Deidre McKenzie, Beverly Patterson and Angelina Stuart on behalf of the Adnyamathanha People is dismissed.
3.The application by Eric Paige, Lorraine Briscoe, Harry Dare, Jeanne Miller and Linda Dare on behalf of the Barngarla People is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
INTRODUCTION
[1]
HISTORY OF CLAIMS OVER LAKE TORRENS
[17]
The Barngarla-Kokatha-Kuyani Overlap and the Arabana Overlap
[22]
The Adnyamathanha-Barngarla Overlap
[28]
The current proceedings
[32]
THE HEARING
[48]
THE LAW
[85]
THE (PARTLY EVOLVING) CLAIMS
[131]
(a) The First Applicants claim
[131]
(b) The Second Applicants claim
[138]
(c) The Third Applicants claim
[144]
(d) Joint submissions of the Second and Third Applicants
[148]
(e) The State of South Australia
[161]
THE ISSUES
[167]
Statement of Agreed Facts
[169]
OBJECTIONS TO THE ANTHROPOLOGICAL EVIDENCE
[175]
THE CLAIM AREA AT SOVEREIGNTY AND SUBSEQUENTLY
[203]
Historical and early ethnographic evidence
[214]
More Recent Ethnographic and Historical Material
[276]
Place names and linguistic identity
[346]
ARCHAEOLOGICAL EVIDENCE
[367]
The lay evidence
[387]
Interrelated applicant groups
[387]
The First Applicants witnesses
[401]
The Second Applicants witnesses
[457]
The Third Applicants witnesses
[526]
Summary of Dreaming stories and beliefs and activities
[603]
Kokatha Tjukurpa
[605]
Adnyamathanha mura
[623]
Barngarla stories
[653]
Other Activities
[676]
Borders of country
[698]
Consideration
[705]
Preliminary Remarks
[705]
The Kokatha Application
[712]
The Adnyamathanha Application
[727]
The Barngarla Application
[755]
CONCLUSION
[770]
EXTINGUISHMENT
[777]
CONCLUSION
[820]
REASONS FOR JUDGMENT
MANSFIELD J:
INTRODUCTION
The Court has before it three overlapping applications for a determination of native title rights and interests pursuant to ss 13 and 61 of the Native Title Act 1993 (Cth) (the NTA), over the lands and waters of Lake Torrens in the mid-north of South Australia. The area claimed by each claim group in its application is identical. Hence, the overlap is complete.
The claim area is distinct. It concerns Australia’s second largest salt lake – Lake Torrens – and an island in that lake – Andamooka Island – which protrudes into the western side of the lake accessible by a causeway from the west. Lake Torrens does not routinely fill but on occasions (e.g. in 1931) it holds substantial fresh water for months which attracts an abundance of wildfowl and other fauna. That is the last recorded occasion when it held substantial water. Otherwise, and for the present hearings, it is a flat white salt lake with some flat areas running into adjacent lands and some rocky outcrops as the entry into the adjacent lands.
The surface of the claim area is accepted by all parties to be unsuited to long-term occupation, save for Andamooka Island. During the hearing a map of Lake Torrens entitled “Lake Torrens Overlap trial locations to be mentioned in evidence” was produced by the State (Exhibit S1). It is annexure A to these reasons. Another map, provided by the State by consent as an aide to the hearing and entitled “Lake Torrens Overlap Proceeding, Marc Thomas, Native Title Section, CSO, 19 August 2015” which depicts most of South Australia, including the claim area and the names of various places in the area surrounding Lake Torrens and referred to in the ethnography is annexure B.
The claim area is bounded by lands and waters in respect of which native title rights and interests have been determined or found to exist. To the west and contiguous with the western shore of Lake Torrens, the claim area abuts the area recognised as the native title lands of the Kokatha Uwankara People: Starkey v State of South Australia [2014] FCA 924 (Kokatha Part A). To the east and contiguous with the eastern shore of Lake Torrens, the claim area abuts the area recognised as the native title lands of the Adnyamathanha People: Adnyamathanha No 1 Native Title Claim Group v South Australia (No 2) [2009] FCA 359 (Adnyamathanha No 1). Separating the Kokatha Part A determination area from the Adnyamathanha No 1 determination area at the northern tip of Lake Torrens is a narrow strip of land (approximately 200 m wide at the shoreline) determined to be the southern part of the native title lands of the Arabana people: Doss v State of South Australia [2012] FCA 519. Separating the Kokatha Part A determination area from the Adnyamathanha No 1 determination area at the south-eastern part of Lake Torrens is approximately 6 km of shoreline which forms the northern part of lands determined to be the native title lands of the Barngarla People: Croft v State of South Australia (2016) 325 ALR 213; [2015] FCA 9 (Barngarla); Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724 (Barngarla No 2).
The present applications for a determination of native title are:
(1)Kokatha Native Title Claim (Part B), SAD 90 of 2009 (the Kokatha Application, made by the First Applicant); this claim is the remaining area of the application which supported the Kokatha Part A determination. The Part A area was heard and determined separately because it did not give rise to the confronting overlapping claims now being considered;
(2)Adnyamathanha No. 5 Native Title Claim, SAD 277 of 2012 (the Adnyamathanha Application, made by the Second Applicant); and
(3)Barngarla (Lake Torrens) Native Title Claim, SAD 175 of 2015 (the Barngarla Application, made by the Third Applicant).
As the parties did in the course of the hearing, the claim group in the Kokatha Application will be referred to as the Kokatha People; the claim group in the Adnyamathanha Application will be called the Adnyamathanha People (in part used interchangeably with the description of the Kuyani People, as the earlier ethnography refers to them in that way as the Adnyamathanha People whose “local” area was more to the western part of the other Adnyamathanha Lands); and the claim group in the Barngarla Application will be called the Barngarla People.
One consequence of the determinations made on areas surrounding Lake Torrens is that there are significant challenges to the relevance to certain of the anthropological evidence which was adduced, as it was said in part to be premised upon parts inconsistent with one or other of those determinations, in particular in Kokatha Part A. It is appropriate, therefore, to record in a little more detail the nature of those determinations.
The determination in Kokatha Part A recognised the Kokatha People as the holders of native title over that claim area, running extensively west from the western borders of Lake Torrens, subject to those parts of the claim area where other acts have extinguished native title, either wholly or in part (including, by agreement the areas the subject of the ODA agreement registered as an ILUA under the NTA, and as explained in [32]-[37] later in these reasons). The recognised and extensive native title rights recognised are non-exclusive, because of the other interests in the claim area as recorded. The other interests do not include interests of any Adnyamathanha or Barngarla People except as recognised in the ODA agreement and as noted the area of the ODA agreement is excluded from the claim area. It is well to the west of Lake Torrens. The prescribed body corporate under s 57(2) of the NTA is the Kokatha Aboriginal Corporation.
The determination in Adnyamathanha No 1 recognised the Adnyamathanha People as the holders of native title over three claim areas, including relevantly the areas immediately to the east of Lake Torrens. Again, the rights recognised are extensive, and subject to the areas where other acts have extinguished native title either wholly or partially. The rights are non-exclusive other than four areas where, by operation of s 47A of the NTA, the extinguishment is to be disregarded. These areas of exclusive native title rights are not directly relevant to the present issues. There are no other terms of that determination which are said to inform the resolution of the present issues.
The determination in Barngarla No 2 recognised the Barngarla People as the holders of native title over that claim area, including relevantly the areas immediately to the south of Lake Torrens. Again, the rights are extensive but by reason of other acts those rights have been extinguished either wholly or partially, so the rights are relevantly to the present issues non-exclusive. There are no other terms of that determination which would inform the resolution of the present issues.
Obviously, at sovereignty, the native title rights and interests so recognised would not have been extinguished either in whole or in part by the acts which have occurred subsequent to sovereignty.
While the named applicants who comprise each of the claimant groups are no longer identical to the applicants who were authorised by the claimant groups and in whose favour the determinations were made in Kokatha Part A, Adnyamathanha No 1 and Barngarla No 2, they identify as being part of the same societies as those recognised as the holders of native title rights and interests under the NTA in Kokatha Part A, Adnyamathanha No 1 and Barngarla, respectively. Nothing presently turns on those differences. However, for reasons which are addressed below, the precise composition of the three competing claim groups provokes certain observations about the extent of certain common ancestry.
It is also accepted that the Kokatha People (in Kokatha Part A referred to as the Kokatha Uwankara People) are an eastern group as part of the wider Western Desert society and that the Adnyamathanha People and the Barngarla People are part of the wider Lakes Group society.
Each of the First, Second and Third Applicants relies on findings made in Kokatha Part A, Adnyamathanha No 1 and Barngarla, respectively, and seeks the Court to adopt certain findings in those proceedings pursuant to s 86(1)(c) of the NTA. The Second Applicant also seeks to rely on findings in a related proceeding: Coulthard v State of South Australia [2014] FCA 124 (Coulthard). Those findings, and the extent to which they are relevant to the present claims, are outlined and addressed in further detail below.
On 10 December 2014 (as reviewed on 2 February 2015), orders were made for the Kokatha Application and the Adnyamathanha Application to be heard together, and programming orders were also made. On 8 July 2015, that order was extended to include the Barngarla Application after that belated application. It is observed that the Barngarla Application was made many years after the other two applications, and of course therefore was not made by any response to the notification of either of those claims under s 66 of the NTA. Those orders meant that all three claimant applications over Lake Torrens would be heard together, as appropriate having regard to s 67(1) of the NTA.
The only other active parties in these claims were the State of South Australia (the State) and two related mining companies, Kelaray Pty Ltd (Kelaray) and Straits Exploration (Australia) Pty Ltd (Straits), although as discussed below, on 22 March 2016 Straits notified the Court that it wished to cease to be a party to the proceedings and Kelaray made only limited written closing submissions on 29 February 2016, after participating in the evidentiary hearing.
HISTORY OF CLAIMS OVER LAKE TORRENS
Like many native title determination applications, the claims which have been made over Lake Torrens, and including Andamooka Island, have a protracted history.
In 1998, the three applicant groups (somewhat differently constituted, and described in one case as the Kuyani, whose descendants now call themselves Adnyamathanha), each made applications for a determination of native title which was geographically more extensive but included Lake Torrens in the lands and waters claimed:
(1)Kokatha Native Title Claim – SAD 6013 of 1998 (the prior Kokatha claim);
(2)Barngarla Native Title Claim – SAD 6011 of 1998 (the prior Barngarla claim); and
(3)Kuyani People Native Title Claim – SAD 6004 of 1998 (the prior Kuyani claim).
The background and resolution of those original claims is described in some detail in Barngarla at [10] – [31]. That history, as recorded in Barngarla, is set out below to the extent that it affects the Lake Torrens area.
On 8 December 2003, the Court referred the prior Barngarla claim to the National Native Title Tribunal (NNTT) for mediation. Two broad main areas of overlap were the focus of its attention. The first area centred around the Lake Torrens area and concerned (at least initially) the prior Kokatha claim and the prior Kuyani claim. The second area centred around the Flinders Ranges National Park to the east of Lake Torrens and concerned two claims of the Adnyamathanha People (Adnyamathanha No 1 and Adnyamathanha No 2), as well as a native title claim made by the Nukunu People.
The NNTT sought to facilitate the State and the Aboriginal Legal Rights Movement (ALRM) (now South Australian Native Title Services or ‘SANTS’), as the relevant native title representative body for South Australia under the NTA, in attempting to resolve native title claims through a process known as the “State-Wide ILUA Process” (ILUA refers to the concept in the NTA of an Indigenous Land Use Agreement). The prior Kokatha claim, the prior Kuyani claim and the prior Barngarla claim (as well as the Adnyamathanha claims referred to) became a part of that process, and specifically a part of a strategy for resolution of overlapping native title claims called the “Central Western South Australia Mediation Strategy”. That Strategy, as far as those claims were concerned, was aimed at resolving the two Barngarla-Kokatha-Kuyani-Adnyamathanha overlaps referred to. It was conducted principally at Spear Creek, and is frequently referred to eponymously as the Spear Creek Mediation. The Spear Creek Mediation sought to address a number of other overlapping claims under the NTA at the same time.
1. The Barngarla-Kokatha-Kuyani Overlap and the Arabana Overlap
On 30 June 2004, the NNTT recommended that its mediation cease to the extent that it concerned the overlap of the Barngarla-Kokatha-Kuyani claims (the first area of overlap referred to at [20]), and that that part of the claim be listed for hearing. The Spear Creek Mediation, and follow-up meetings, had been unsuccessful in resolving the groups’ differences. The State opposed that recommendation, saying that the more appropriate course was to persevere with the “State-Wide ILUA process”. On 22 July 2004, the Court adopted the NNTT recommendation and ordered that that overlap be removed from mediation.
However, on 13 October 2004, the Court ordered that the Kokatha-Barngarla overlap be referred back to mediation by the NNTT. That order was made because it had emerged that an in-principle agreement to share the area of the overlap might be able to be finalised.
On 27 January 2005, the prior Kuyani claim was struck out by Finn J: McKenzie v South Australia (2005) 214 ALR 214. A second Kuyani Native Title Claim briefly emerged in early 2006, only to be discontinued several months later: Kokatha People v State of South Australia [2007] FCA 1057 at [9] per Finn J.
By this time, the Kokatha-Barngarla overlap had been affected by a third claim by the Arabana People (SAD 6025 of 1998). On 15 April 2005, the Court referred the Arabana People Native Title Claim to mediation by the NNTT, limited to that part of the claim which overlapped with the prior Kokatha and prior Barngarla claims. The consequent negotiations were not successful.
On 8 September 2005, the Court ordered that that part of the prior Barngarla claim that overlapped with the prior Kokatha and Arabana People claim was to be dealt with in a separate “overlap proceeding”. At about that time, the NNTT reported that there was a clear willingness on the part of the Barngarla, Kokatha and Arabana claimants to resolve the overlaps.
On 1 July 2007, a resolution of the overlaps between the prior Barngarla claim and Arabana People Native Title Claim was reached. The prior Barngarla claim would withdraw the claim over the overlapping land area, as it did. The prior Barngarla claim is the claim which is the subject of the Barngarla No 2 determination. The Arabana People were also to withdraw the claim over the overlapping area in the northern part of Lake Torrens, as it did. The Arabana People claim led to the determination referred to above in their favour, abutting Lake Torrens for a short distance at its northern extreme.
2. The Adnyamathanha-Barngarla Overlap
Meanwhile, the NNTT reported at the same time that progress was being made on the resolution of the Adnyamathanha-Barngarla overlap.
On 9 February 2006, the Court ordered that the ongoing NNTT mediation should focus on resolving overlaps between the prior Barngarla claim and the Adnyamathanha Peoples No 1 and No 2 Native Title Claims (SAD 6001 and 6002 of 1998 respectively). Negotiations between those groups had been on hold at the NNTT for several years, as the NNTT, ALRM and the State prioritised, inter alia, the Kokatha-Barngarla-Arabana Peoples overlap negotiations.
Through 2006 and 2007, the NNTT mediation of the prior Barngarla claim overlaps with the two Adnyamathanha Peoples Native Title Claims, now known collectively as the “Adnyamathanha Peoples Proceeding” continued. An agreement was reached in around December 2007, resulting in recognition of the Adnyamathanha over a substantial area in and around the Flinders Ranges and to the east of Lake Torrens: Adnyamathanha No 1.
In consequence of the above agreements with both the Adnyamathanha People and the Arabana Peoples, on 30 May 2008, a further amended application was filed by the Barngarla People reducing the prior Barngarla claim area to bring the claim area’s north-eastern boundary to the south-eastern border of Lake Torrens. Findings were made in favour of the Barngarla in respect of land and waters adjacent to the south-eastern part of Lake Torrens and further to the south in 2015 in Barngarla and effect was given to those findings, having regard to extinguishment in Barngarla No 2.
3. The current proceedings
A further agreement was reached on 14 December 2008 at a meeting at the Standpipe Hotel, Port Augusta, between the Barngarla, Kokatha and Kuyani peoples to pursue jointly a claim over Lake Torrens and the area to its west. That claim, lodged as the Kokatha Uwankara Native Title Claim on 18 June 2009, is the original claimant application filed by the First Applicant in the present matter, that is the Kokatha Application but including both Parts A and B. It is convenient to call that application, including both Parts A and B, the Kokatha Uwankara Claim, to distinguish it from that claim as it later proceeded over those separate parts. On 5 April 2013, the Court made orders dividing the Kokatha claim into Part A and Part B. Part A consisted of the area west of Lake Torrens whilst Part B comprised the whole of Lake Torrens including Andamooka Island. As noted, Part A was resolved by the consent determination in Kokatha Part A. Part B was then renamed the Lake Torrens Overlap Proceedings, and in these reasons is referred to as to the Kokatha Application.
Those persons originally authorised to make the claim (then over Parts A and B) were Andrew Starkey, Lorraine Dare, Mark McKenzie and Joylene Thomas. Following the filing of the First Applicant’s amended claimant application the named applicants were Andrew Starkey and Joylene Thomas only, as reflected in Kokatha Part A. The First Applicant submits that Lorraine Dare is also a Barngarla person, that Mark McKenzie is also an Adnyamathanha Person and that Joylene Thomas and Andrew Starkey are Kokatha people. Further, it is said that Adnyamathanha claim group members Mick McKenzie, Mark McKenzie and Tony Clarke, and Barngarla claim group members Eric Paige, Beverly Patterson, Linda Dare and Patricia Dare were all present at the meeting to support the amended application and that Lee Brady (who was not present but who is an Adnyamathanha person) also wrote to Mr Linde at SANTS confirming his agreement to be part of the Kokatha Uwankara claim. Then, as now, the description of the claim group included Mark McKenzie, Tony Clark and Lee Brady who identify as Kuyani or Adnyamathanha people because of their “spiritual connection to and responsibility for specific sites in the determination area”, although it does not include their descendants.
On 8 November 2012, Mark McKenzie Senior, Anthony Clark, Angeline Stuart, Michael Anderson, Deidre McKenzie and Beverly Patterson on behalf of the Adnyamathanha People filed the present Adnyamathanha Application by the Second Applicant over Lake Torrens and Andamooka Island. They were also joined as respondents on behalf of the Adnyamathanha People to the Kokatha Uwankara claim. That was notwithstanding that the Kokatha Uwankara claim group formulation included Mark McKenzie, Tony Clark and Lee Brady, three individuals who identified as, or also identified as, Adnyamathanha and/or Kuyani: see affidavit of N Llewellyn-Jones of 25 August 2014.
In 2014, the State was exploring the resolution of Part A of the Kokatha Uwankara claim by consent. It was not then proposed that Mark McKenzie, Lee Brady, or Tony Clark should form part of the claimant group despite being included in the description of claim group in the Kokatha Uwankara claim. Ultimately, the named Adnyamathanha withdrew as respondents to Part A of that claim enabling the consent determination by Kokatha Part A to proceed.
The circumstances in which that occurred are set out in the affidavit of N Llewelyn-Jones of 25 August 2014. It records that the Adnyamathanha People had indicated that they have “traditional rights and interests” in that consent determination area, that is the area to the west of Lake Torrens, that they had provided material to the Federal Court of Australia on 1 July 2013 in support of that assertion, and that the claim group formulation for the Kokatha Uwankara claim included three Adnyamathanha/Kuyani individuals who were included into the Kokatha claim to represent those interests.
That affidavit further records that, the Kuyani Yartah Association, which comprises Adnyamathanha Persons, and one of the Kokatha associations, are party to a commercial agreement with BHP Billiton Pty Ltd regarding Olympic Dam (the ODA). The ODA was negotiated through 2004 to 2008; the signing ceremony was on 18 February 2008; and it became fully operational on 16 December 2009. The ODA Trust became operational in early 2010. Accordingly, the affidavit records that a commercial agreement, binding on members and/or associations of both parties, already existed subject to certain “implementation” phases. The last of the implementation phases was to be the completion of an ILUA which, it was said, needed to be finalised, in order properly to protect the Adnyamathanha/Kuyani interests under the ODA. Accordingly, it records that the Adnyamathanha and Kokatha had finalised an agreement which had the effect of guaranteeing the Kuyani interests under the ODA. In consideration of this, the Adnyamathanha had agreed to facilitate the Kokatha consent determination in the Part A area to the west of Lake Torrens.
As indicated, the named Adnyamathanha persons then withdrew as respondents, and Part A of the Kokatha Uwankara claim was resolved by the consent determination in Kokatha Part A.
Orders were then made on 10 December 2014 (as reviewed 2 February 2015) for Part B of the Kokatha Uwankara Application, as now described in these reasons the Kokatha Application, which had yet to be resolved and the Adnyamathanha Application to be heard together.
On 11 June 2015, a new claimant application was filed by the Barngarla (Lake Torrens) Native Title Claim, now described as the Barngarla Application. Three of the apical ancestors in the Barngarla Application, Andrew Davis, Percy Davis and Stanley Davis, are also named as apical ancestors in the Kokatha Application. A further order was made on 8 July 2015 that the applicant in the Barngarla Application be the Third Applicant in these proceedings. Those orders meant that all three claimant applications over Lake Torrens would be heard together pursuant to s 67(1) of the NTA.
The purpose of setting out this detailed history is not simply to describe the detailed history of the overlapping native title claims which are presently being considered in this matter. It is to record the numerous negotiation and mediation processes which each of the Applicants and the State have engaged in, and the attempts made by each of the parties, to resolve their overlapping claims through an ILUA process, a consent determination, or the formulation of a single claim over Lake Torrens.
The consequence is that the Court presently has before it three claimant applications which entirely overlap geographically.
Historically, in terms of the description of the native title holders in the three claimant applications (see also “Interrelated applicant groups” below) and, at least in some contemporary cases, that overlap is also in part cultural or genealogical. At this stage, it is also appropriate to record that, due to the description of the native title holders in each of the three claimant applications and the genealogical overlap between the claimant groups, if a finding were to be made in favour one of the applicant groups, that might not preclude the allocation intra-mural of particular responsibility for, or interest in, a particular area or areas of the determination area to a member of the claim group, even though that person is also a member of one or other or both of the other claim groups.
The three claimant applications, each as formulated, presents a claim for a determination being made in favour of one or other of the three Applicants to the exclusion of the others. That was the case presented by each of the Applicants in opening, and subject to certain admissions on the evidence and joint submissions made by the Second and Third Applicants in their oral, and supplementary, closing submissions.
At the outset the Court observed that the further the individual cases of the Applicants were advanced, the more there would be evidence directed also to showing that another Applicant, or Applicant group, did not have the native title rights which were asserted. There cannot be three sets of exclusive native title rights held by different groups. It also pointed out that it could not be assumed that the Court could find that there are joint or co-existing rights held by some differently defined group or society or community over Lake Torrens. That is not to suggest that the three claimant applications, or the manner in which the evidence evolved from the Applicants, was anything other than appropriate in the circumstances. It was to note the tension between the cases as presented, and the difficulty with respect to a future “joint proposal” such as the alternative proposition now made by the Second and Third Applicants (and at least in theory by the First Applicant) that the Court might exercise its power to find in favour of more than one Applicant, or some differently defined applicant, in respect of the same area. There is no reason why, depending on the evidence, the Court could not find in favour of one or more of the Applicants over a part or parts of Lake Torrens, but it is not evident that it could create a fourth group, not one of the Applicant groups, and determine that that different group held native title over Lake Torrens or parts of it.
The significance of the various alternative outcomes raised by the parties in final submissions is addressed further in the section of those reasons under the heading “The Law”.
As one counsel figuratively observed, three-handed poker got the name cut-throat poker.
THE HEARING
Certain aspects of the lay and expert evidence concerned knowledge of secret men’s matters including of particular ceremonies and stories. It is described as secret because (as the parties accept) certain evidence about the ceremonies and stories of initiated Aboriginal men are not to be disclosed to women. Orders were made in respect of gender restricted evidence led by the First and Second Applicants on various occasions during the hearing, varied as appropriate, under s 17(4) and s 37AF(1)(b)(i) of the Federal Court of Australia Act 1976 (Cth) and s 82(2) of the NTA, restricting those persons who may hear, or view the transcript of, that evidence.
I note that the cultural concerns which led to the orders restricting those persons who may hear or view the transcript evidence were generally agreed to be appropriate, and were accommodated by counsel without opposition. That is despite the substantial restricted evidence which was proposed to be, and was, led, and the associated and corresponding complexity of the hearing, including the decision by parties to brief additional counsel to accommodate those cultural concerns. The parties are to be commended for the sensible and sensitive way in which those concerns were recognised.
Orders were also made in respect of the extent to which senior counsel for the Third Applicant should be entitled to hear and to cross-examine gender restricted evidence given by one witness for the First Applicant, because that counsel is himself an Aboriginal man and is not of the Kokatha claim group or of the wider Western Desert cultural group: Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195. That, too, was accommodated by the engagement of other senior counsel for parts of the hearing.
Evidence was led and argument heard over 21 hearing days on the existence of native title in the claim area and on extinguishment between October 2015 and March 2016.
It was common ground as between the parties, that no expert proposed to give evidence directly to attack any finding of fact which is fundamental to or underlies any existing determination and that the focus of the experts’ reports was on who, if anyone, occupies or is entitled to native title rights over Lake Torrens. That is, as the Court expressed it in the course of the hearing, the parties accepted the primary findings of fact necessary to support the three determinations on the areas of land surrounding Lake Torrens (as outlined in Kokatha Part A, Adnyamathanha No 1 and Barngarla) and, of course, the three determinations in Kokatha Part A, Adnyamathanha No 1, and Barngarla No 2 handed down on 23 June 2016.
Nonetheless, as briefly noted above, there were a number of objections to, and submissions which were made in respect of, both the oral and written evidence given by the experts.
Firstly, in respect of the expert evidence and despite the common ground about what was proposed, it was said that certain parts of the evidence were in fact an attack on findings in existing determinations. The evidence the subject of these objections was admitted into evidence to inform the extent to which there are native title rights in any one of the Applicants over Lake Torrens, and for any other legitimate purpose. This was done on the basis that the evidence would not be used to undermine an existing determination and that, in the event that it had no other relevant use, there would be no weight accorded to it. That ruling specified that it was for the party seeking to rely on that evidence to make appropriate submissions on its legitimate use, with the objecting party to have a right of reply. Those matters were then addressed further in the final submissions.
It was also said that certain parts of the expert reports are argumentative, hard to understand or not based on a proper foundation. In those circumstances, the evidence was received simply as a contention, again on the basis that final submissions would be made on its appropriate use, and with the objecting party accorded the right to respond. That is not an uncommon course to adopt, as it avoids a very extensive and time consuming analysis of, and rulings on, very long experts reports and then the steering of refined and complex courses in the evidence progress (as experience has shown) with great waste of time and little or no real benefit. The parties sensibly accepted that it was not necessary to go down that path.
Those issues are considered in more detail under the heading ‘Expert evidence’ below.
Similar submissions were also made in respect of certain lay evidence, to the extent that it was said to contradict the findings of the Court in Kokatha No 1, Adnyamathanha No 1 and Barngarla. That evidence was also received on the basis that no weight would be given to evidence that was inconsistent with those determinations.
There were 25 lay witnesses called by the Applicants over the hearing days from 26 October 2015 to 17 December 2015. A number of witnesses gave evidence “on country” on sites on Andamooka Island, or around the eastern border of Lake Torrens. Most witnesses gave evidence in Port Augusta or, in some cases, in Adelaide.
There were 11 lay witnesses called by the First Applicant. They were: Andrew Starkey, Robert Starkey, Michael Starkey, Glen Wingfield, Paul Strangways, Janice Wingfield, Sonya Gaston, Rebecca Bear Wingfield, Peter Mungkari, Kevin Dingaman and Professor Jon Willis. Professor Willis, the expert anthropologist engaged by the First Applicant, gave “lay” evidence separately from, and prior to, his evidence as an expert witness in accordance with orders made on 9 November 2015: Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195. That is because Willis, although not of indigenous extraction, is a person who has had a very long association with the Kokatha claim group and more generally people from the Western Desert country and is an initiated Pitjantjatjara Yankunytjatjara man. He was called as a “lay” witness in respect of both his actual experience of, and knowledge of, Western Desert cultural practices, along with other members of the Kokatha claim group, and as an expert anthropologist. It is not any disrespect that I shall recognise the professional status of each of the expert witnesses by using their respective professional titles when they are first referred to, but thereafter I will simply use the surname without repetition of the qualification.
During the course of evidence-in-chief, the First Applicant also tendered and relied on a series of restricted, and non-restricted photo plates, as well as a DVD entitled “Lake Torrens Overlap Proceeding 1st Applicant’s Footage Eucolo Creek”. It also tendered two extracts from a book by Dr D Tunbridge, “Artuni the Seven Sisters” and ‘The Woman who Murdered her Daughter’ extracted at page 16 and pages 128-129, respectively.
On country evidence, gender restricted in its entirety, was given by Andrew Starkey, Robert Starkey, Michael Starkey, Glen Wingfield, Paul Strangways, Peter Mungkari and Kevin Dingaman at Andamooka Island. The First Applicant also sought to rely on transcript of evidence given by Michael Starkey in proceedings in the Environmental Resources and Development Court of South Australia (the ERD Court) on 25 November 2010 in Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants (ERD 231 of 2010). In addition the First Applicant relied on a letter signed by Lee Brady, a lay witness called by the Second Applicant, to SANTS dated 28 November 2008 and a copy of exhibit S1, as marked by Lee Brady. Genealogies prepared by SANTS for the then named Kokatha Uwankara Native Title Claim (that is, to cover Parts A and B of the claim) dated February 2009 were also tendered.
There were 7 lay witnesses called by the Second Applicant. They were Lee Brady, Regina McKenzie, Michael McKenzie, Heather Stuart, Ken McKenzie, Jacqueline McKenzie and Beverly Patterson. On country evidence was given by Lee Brady, Regina McKenzie and Michael McKenzie at Andamooka Island; Regina McKenzie and Heather Stuart at Hookina Creek and Ken McKenzie, Jacqueline McKenzie and Beverly Patterson at Nilpena. Gender restricted evidence was given by Michael McKenzie, Lee Brady and briefly by Ken McKenzie. Genealogies for the Second Applicant dated 1985 and 2008 were also tendered.
During the course of evidence-in-chief, the Second Applicant also tendered and relied on a series of restricted, and non-restricted photos of parts of the claim area as identified by the lay witnesses.
There were 7 lay witnesses called by the Third Applicant. They were Eric Paige, Graham Richards, Amanda Richards, Rosalie Richards, Patricia Dare, Linda Dare and Harry Dare. Only one witness gave evidence as a non-Aboriginal person: Rosalie Richards. On country evidence was given by Eric Page at Andamooka Island. During the course of evidence-in-chief, the Third Applicant also tendered and relied on a series of restricted photos, those photographs marked as ‘restricted to men only’ were tendered on an unrestricted basis. There was no other gender restricted evidence led by the Third Applicant.
Apart from the oral evidence of the lay witnesses at the hearing, the Third Applicant also relied on transcripts of evidence given by Eric Paige on 4 December 2012, Rosalie Richards on 7 December 2012, Amanda Richards on 4 December 2012, Linda Dare on 28 November 2012 and 10 December 2012 together with the DVD of Linda Dare performing the seven sisters dance at Roxby Downs (received during the giving of evidence as recorded in that transcript) and Harold Charles (Harry) Dare on 3 December 2012, adduced in the Barngarla matter. The Third Applicant also relied on the affidavit of Linda Dare of 5 May 1999 and Leroy Richards (deceased) of 26 May 1999, as well as a witness statement of Eileen Wingfield, mother of Janice Wingfield, Sonya Gaston and Rebecca Bear Wingfield, of 4 November 2010 tendered in Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants in the ERD Court. In addition, the Third Applicant relied on a copy of exhibit S1 as marked by Graham Richards during his evidence-in-chief.
No lay witnesses were called by any party other than the Applicants.
The Court received the report of the conference of experts of 7 July 2015, and the report of the conference of experts of 10 and 11 September 2015. It received expert anthropological reports into evidence and heard oral evidence from the anthropologists Willis (called by the First Applicant), Mr Bob Ellis (called by the Second Applicant), Dr Deane Fergie, Dr Rod Lucas, Dr Paul Monaghan (called by the Third Applicant), Professor Peter Sutton (called by the State) and Dr Sullivan (called by Kelaray and Straits). Those reports were the report of Willis of 7 October 2015 (Willis Report), the report of Ellis of 27 September 2015, as revised on 15 December 2015 (Ellis Report) and the further report of Ellis of 15 December 2015 (Ellis Supplementary Report), the report of Fergie Lucas and Monaghan of 6 October 2015 (Fergie Lucas & Monaghan Report), in addition to a copy of exhibit S1, as marked by Fergie during the concurrent expert evidence, the report of Professor Sutton of 20 October 2015 (Sutton Report) and the supplementary report of Sutton of 15 December 2015 (Sutton Supplementary Report) and the report of Sullivan dated 16 October 2015 (Sullivan Report).
The Third Applicant accepted that it would not be appropriate for evidence on the same matter to be repeated by each of Fergie Lucas and Monaghan to bolster its case, and the oral evidence proceeded on the basis that those witnesses would each give specific and complementary oral evidence with respect to the various issues to be addressed, informed by which of those three experts was the more appropriate to address the particular issue.
The Sullivan Report was received on 17 December 2015. However, on 22 March 2016 the Court was notified that Sullivan would be unavailable to complete the concurrent anthropological oral evidence. That was related to the notification that Kelaray had terminated its retainer for legal representation for commercial reasons, and the application of counsel for Straits and Kelaray for leave not to appear further in the hearing. That application was granted and as noted above, Straits subsequently ceased to be a party. Mr Owler, a director of Kelaray was given leave to appear for Kelaray. Consequently on 29 February 2016 when the hearing of the concurrent anthropological evidence resumed, in the absence of Sullivan and in circumstances where no other party sought to compel his attendance but each wished to test his evidence by questions to be directed to him, the Court ruled that no weight would be placed on his report of 16 October 2015, or his previous evidence-in-chief, except to understand the purposes of the particular cross-examination which might otherwise be admissible. Kelaray accepted that that ruling was appropriate, also because there were often objections to the evidence of Sullivan which could no longer be usefully explored in his absence. It is not necessary to address that further in the circumstances.
The Court also received expert reports into evidence and heard oral evidence from the expert archaeologists Professor Neale Draper and Dr Greg Carver. Draper was called by the First Applicant and Carver was called by the Second Applicant. The First Applicant relied upon the expert archaeological reports of Draper of 7 September 2015 (Draper Report). The Second Applicant relied on the report of Carver of 5 October 2015 (Carver Report), in addition to a three page document with copied images of petroglyphs marked Plates X, Y and I prepared by Carver. The Court also received the Agreed Statement of Expert Issues: Archaeologists of 17 December 2015.
The Court also received the expert historical report of Mr Tom Gara of 19 October 2015 (Gara Report), tendered by the State. The report was received without any request for cross-examination.
The parties also tendered a number of expert historical, anthropological and archaeological reports which form the underlying ethnographic literature of the claim area. The earlier of these reports were first published in the late 1800s and then progressively through to the 1980s, 1990s and 2000s when a number of reports were prepared in relation to mining projects, or potential mining projects, and other work clearances and surveys.
The First Applicant tendered and relied on:
(1)Kingsmill and Gason 1886, ‘No. 60. Beltana’, p 118 – 119,
(2)Helms 1896, “Anthropology by Richard Helms 1896” pp 277-278 (pp 21-22 of the pdf document)
(3)Tindale 1938-39, “Harvard and Adelaide Universities Anthropological Expedition Australia 1938 – 1939 Journal and notes by Norman B. Tindale”, P 36 Sketch map
(4)Tindale 1940, “Results of the Harvard and Adelaide Universities of Anthropological Expedition Australia 1938 – 1939 Distribution of the Australian Aboriginal Tribes: A Field Survey”
(5)Elkin, A.P. 1879-1939, “Aboriginal Men of High Degree,” Australian Publishing Co. [1945], Map, “Aboriginal Tribes of Australia”
(6)Tindale 1974, “Aboriginal Tribes of Australia” p 213 (p 3 of the pdf document)
(7)Austin Ellis and Hercus 1976, “‘Fruit of the Eyes’ Semantic Diffusion in the Lakes Languages of South Australia”, Map on p 67
(8)Elkin 1976, Oceania 46(3) “R.H. Mathews: His Contribution to Aboriginal Studies” pp 217-219
(9)Hagen and Martin 1983, “Report on Kokatha Interests in Sites and Land in Vicinity of the Olympic Dam Mining Project” Appendices 1, 4, 5, 6 and 7, Appendix 1 Women’s survey (p 114 of the pdf document
(10)Mythological Tracks in the vicinity of the Olympic Dam Mining Venture – August 1983, Rod Hagen
(11)Aboriginal Land Rights in Port Augusta – October 1983, J.M Jacobs (H51) pp 261, 262 (A3 map), 357, and 358 (reproduced into two A3 maps)
(12)Report on Kokatha Interests in Sites and Land in the Vicinity of the Olympic Dam Mining Project – September 1983, R. Hagen and S. Martin. (E41) (pp 37 -39)
(13)Fitzpatrick and Gara 1984, “Anthropological Survey of Extractive Mineral Leases on Birthday, Four Mile and Nantilla Creeks Near Port Augusta – A Report for the Kokatha People’s Committee” p 5 of the report (p 7 of the pdf document)
(14)Fitzpatrick & Gara, “Anthropological Survey of extractive mineral leases on Birthday, Four Mile and Nantilla Creeks near Port Augusta – a report for the Kokatha People’s Committee” – October 1984
(15)Berndt 1985, “Natural History of Eyre Peninsula” Chapter 10: Traditional Aborigines
(16)Jacobs 1986, “Understanding the Limitations and Cultural Implications of Aboriginal Tribal Boundary Maps”, p 3, p 12 Map 3 (Field work 1981)
(17)A. P. Elkin 1977, 1994, “Aboriginal Men of High Degree Initiation and Sorcery in the World’s Oldest Tradition”, Foreword page xv
(18)Aziz Willis 1996, “Lake Torrens South: Work Area Clearance”
(19)Connection Report – Myrtle Springs Station, Northern Flinders Ranges, South Australia – September 2000, B. Ellis. (E33) pp 2-3
(20)Hugo 2003, “National Native Title Tribunal research report, North Lakes Region, South Australia” by Dr David Hugo October 2003
(21)“Proposal for the Conduct of a Survey within EL 94/03 (now EL 3195) by Representatives of the Kuyani (SC 00/3) Native Title Claimant Group” dated 5 May 2004
(22)Fitzpatrick and Wood 2005, “Work Area Clearance Andamooka Island Lake Torrens EL 3195 A Report to Straits Exploration (Australia) Pty Ltd and the Barngarla Native Title Claimants”
(23)Fitzpatrick and Wood 2006, “Work Area Clearance Andamooka Island Lake Torrens EL 3195 A Report to Straits Exploration (Australia) Pty Ltd and the Barngarla Native Title Claimants”
(24)De Gand October 2006, “Report on an Ethnographic Desktop Assessment and Consultation with Members of the Andamooka Land Council Aboriginal Corporation Regarding a Proposed Drilling Project at Lake Torrens in South Australia for Straits Exploration (Australia) Pty Ltd”, p 9
(25)Draper, Morley and Damhuis December 2007 (ACHM), “Aboriginal Cultural heritage Survey of Potential Drill Sites and Access Tracks within the Straits Exploration (Australia) Pty Ltd Exploration Licence Area (EL3195), Andamooka Island, SA – Kokatha Report”
(26)Draper, Sutherland and Williams May 2007 (ACHM), “Kokatha Native Title Claim (SAD 6013/1998) Expert Anthropology Report 2nd Draft, May 2007” (Vol 2 pdf p 25)
(27)Document entitled “A report to Straits Exploration (Australia) Pty Ltd and the Barngarla Native Title Claimants” dated November 2007
(28)Adnyamathanha Native Title Report Volume 2 – January 2008, Bob Ellis p 89
(29)Letter signed by Mr L Brady to SA Native Title Services dated 28 November 2008
(30)Kokatha Uwankara Authorisation Meeting, Attendance Record, 14 December 2008
(31)Draper 2010 (ACHM), “Aboriginal Cultural heritage Significance of Lake Torrens, South Australia. Anthropological Report prepared for the Kokatha Uwankara Native Title Claim Group (SAD 90/2009)”
The Second Applicant tendered and relied on:
(1)Kokatha People’s Committee Field Report #1 concerning a field survey undertake 8-10 October 1981 by D A Vachon
(2)Southern Land Council Field Report – Roxby Downs Olympic Dam Site – November 12-13 1981 by D A Vachon
(3)Hagen (1983) Aboriginal Sites of Significance - Interim Report to the Kokatha People’s Committee
(4)Gara, T (1989) The Kokatha Heritage Survey
(5)Fax letter from Andamooka Land Council to Straits Exploration (Australia) Pty Ltd dated 14 Sep 2007 and unsigned digital original of same
(6)Pring, A & McLean, G (2014) Aboriginal People’s Points of View about Mining (draft) pp 1-3 only
(7)BHP Billiton – draft EIS for Olympic Dam expansion – Appendix N8 “Ecological assessment of groundwater dependent ecosystems”
In relation to the history of the claims over Lake Torrens, the First Applicant also tendered two mediation progress reports by the NNTT dated 2 November 2007 and 12 December 2007, as well as two supplementary mediation progress reports, dated 9 December 2008 and 15 December 2008. An affidavit of Philip Teitzel, affirmed 13 July 2009, was also tendered. To an extent that material has been addressed in the ‘History of Claims over Lake Torrens’ section of these reasons.
Finally, the First Applicant tendered a Statement of Agreed Facts filed on 15 April 2015 (as between the First and Second Applicants and the State).
The Third Applicant tendered and relied on:
(1)Research performed on 1850s historical sources identified in Gara (2015) comprising a 7 page table, and a map to which that document relates.
The State tendered and relied on:
(1)Gara (1988) Report on fieldwork with the Kokatha People’s Committee at Coorlay Lagoon and Whisky Swamp; and
(2)Attachment 8 of the report of 8 October 1985 authored by the Roxby Management Services, containing a map on p 5 depicting Kokatha country.
It also tendered an affidavit of William Watt sworn on 30 October 2015 and filed on 16 November 2016, including the attached exhibits. That affidavit related to the issues of extinguishment. Its contents were uncontentious.
Finally, oral submissions were made by each of the Applicants and the State over two days, 30 and 31 March 2016. The oral submissions were supplemented by written submissions by each of those parties, as well as by Kelaray, BHP Billiton Olympic Dam Corporation Pty Ltd (BHP) and Mr D Greenfield, the holder of two Pastoral Leases over the area of Andamooka Island.
Kelaray made written submissions which were largely confined to dealing with aspects of the claim of the First Applicant. They address the proper use and weight to be accorded to the determination in Kokatha Part A, the Statement of Agreed Facts (as agreed between the First and Second Applicant and the State) and the anthropological evidence (specifically the evidence either relied on and otherwise considered by the First Applicant in its submissions). Kelaray also made brief submissions in respect of the possibility of shared country.
The only other persons to make written submissions were BHP and Greenfield. Both Greenfield and BHP made separate, brief written submissions in respect of extinguishment, outlining that their respective interests were validly granted and are, themselves, valid. Otherwise, they adopted the submissions of the State of South Australia, in the case of BHP in relation to the effect of the grant of exploration tenements on native title, and in the case of Greenfield, in relation to the effect of the grant of the pastoral leases over Andamooka Island.
For completeness, I also record that OZ Minerals, OZM Carrapateena Pty Ltd and OZ Exploration Pty Ltd filed a notice submitting to any order of the Court in this proceeding on 18 March 2016.
All that material has been considered in the course of, and for the purposes of, this judgment although there may be no specific references to it where the issue raised has been addressed in much the same manner by one of the active parties during the hearing.
THE LAW
As has been observed in a number of decisions, the starting point for consideration of an application for a native title determination is the NTA: Western Australia v Ward (2002) 213 CLR 1 at [16] and [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ (Ward HC); Yorta Yorta v Victoria (2002) 214 CLR 422 at [32] per Gleeson CJ, Gummow and Hayne JJ (Yorta Yorta); and Commonwealth v Yarmirr (2001) 208 CLR 1 at [7] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. Although ss 223(1)(a) and (b) of the NTA are in large part based on Brennan J’s judgment in Mabo v Queensland (No 2) (1992) 175 CLR 1, it is the provisions of the NTA which establish the criteria for determining an application for a native title determination.
Section 225 of the NTA defines what is determined in an application for a native title determination.
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:
(1)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(2)the nature and extent of the native title rights and interests in relation to the determination area; and
(3)the nature and extent of any other interests in relation to the determination area; and
(4)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(5)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.
Section 223 of the NTA defines the expressions “native title” and “native title rights and interests”. Relevantly, s 223(1) provides:
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
(c)the rights and interests are recognised by the common law of Australia.
For a determination of native title to succeed, all the elements in s 223(1) of the NTA must be “given effect”: Yorta Yorta at [33].
With respect to s 223(1), in Ward HC, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed at [17]:
…Several points should be made here. First, the rights and interests may be communal, group or individual rights and interests. Secondly the rights and interests consist “in relation to land or waters”. Thirdly, the rights and interests must have three characteristics: (a) they are rights and interests which are “possessed under the traditional laws acknowledged, and the traditional customs observed”, by the relevant peoples; (b) by those traditional laws and customs, the peoples “have a connection with” the land or waters in question; and (c) the rights and interests must be “recognised by the common law of Australia”.
In Barngarla, I sought to give effect to those requirements, expressed at [640] in the following terms.
The task of this Court is to ascertain under which (if any) laws acknowledged and customs observed by the present-day [Aboriginal] society do the claimants have rights and interests in the claimed land. Once ascertained, the Court must ask whether those laws and customs can be said to be “traditional laws” or “traditional customs”. The question of whether a particular aspect of [Aboriginal] society as it existed at sovereignty has been lost or retained is relevant only if that question helps determine whether the laws and customs of the present-day [Aboriginal] society can be said to be “traditional”. And the concept of traditional is one which should accommodate adaptation of those laws and customs with the evolution of the traditional [Aboriginal] society, if that is found to have occurred.
In making a determination of native title, the plurality in the High Court in Yorta Yorta recognised the importance of traditional rights and interests being established at or before sovereignty at [43]-[44]:
…It is important to recognise that the rights and interests concerned originate in a normative system, and to recognise some consequences that follow from the Crown's assertion of sovereignty. Upon the Crown acquiring sovereignty, the normative or law‑making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign.
That is not to deny that the new legal order recognised then existing rights and interests in land. Nor is it to deny the efficacy of rules of transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty, where those native title rights continue to be recognised by the legal order of the new sovereign. The rights and interests in land which the new sovereign order recognised included the rules of traditional law and custom which dealt with the transmission of those interests. Nor is it to say that account could never be taken of any alteration to, or development of, that traditional law and custom that occurred after sovereignty. Account may have to be taken of developments at least of a kind contemplated by that traditional law and custom. Indeed, in this matter, both the claimants and respondents accepted that there could be "significant adaptations". But what the assertion of sovereignty by the British Crown necessarily entailed was that there could thereafter be no parallel law‑making system in the territory over which it asserted sovereignty. To hold otherwise would be to deny the acquisition of sovereignty and as has been pointed out earlier, that is not permissible. Because there could be no parallel law‑making system after the assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre‑sovereignty law and custom.
The native title claimants have both an evidentiary and an ultimate onus of proof, subject to the issue of extinguishment: Western Australia v Ward (2000) 99 FCR 316; Daniel v Western Australia (2004) 208 ALR 51 (Daniel); Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31 at [339].
As discussed in Yorta Yorta by the plurality at [80]:
It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof. But the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.
Nonetheless, where there are gaps in the historical timeline to the date of the application for a determination of native title, the Court may draw inferences in favour of the claimants in respect of substantial maintenance of connection from sovereignty where there is a proper foundation to do so. That requires the Court to be satisfied that the claimants currently have a connection with the claim area through traditional laws and customs observed and acknowledged, and the evidence available provides some support for the inference of the presence of that connection in the past (traceable by various means such as observations at and after the time of first contact, ancestors, marriage, migration and incorporation and even tribal disputes and wars): De Rose v South Australia [2002] FCA 1342 at [570]. As O’Loughlin J there observed:
To place any higher burden of proof on the claimants, who have a wholly oral tradition that reaches back reliably no further than three or (in a few cases) four generations, would be manifestly oppressive.
Where evidence of Aboriginal presence at sovereignty is unavailable (as is commonly the case), such an inference is more readily drawn where there is a preponderance and weight of available evidence and in the absence of contradictory evidence: see e.g. Yarmirr v Northern Territory (1998) 82 FCR 533. Where it is appropriate to do so, weight should be accorded not only to physical use of the claim area but also to evidence of spiritual connection: e.g. see Griffiths v Northern Territory (2007) 165 FCR 391; [2007] FCAFC 178 (French, Branson and Sundberg JJ) at [127] where spiritual sanctions visited upon unauthorised entry supported a finding of exclusive possession.
On occasions, it is appropriate that the Court is assisted in by s 86(1)(c) of the NTA, which provides the Court with a discretionary power to adopt “any recommendation, finding, decision or judgment” from other proceedings as there specified, subject to s 82(1), that is subject to the rules of evidence, except to the extent that the Court otherwise orders. That is an aspect referred to in more detail later in these reasons.
Nonetheless, the Court must be satisfied that, the traditional rights and interests (once established) relate to the particular area under consideration. In Bennell v Western Australia (2006) 153 FCR 120, the trial judge considered and found in favour of the Noongar People, on the hearing of the separate question of whether native title existed in relation to land and waters in a portion of the claim area, that is the Perth metropolitan area. On appeal, the Full Court in Bodney v Bennell (2008) 167 FCR 84 held that it was not open to the trial judge to find the necessary connection in relation to the Perth metropolitan area from evidence concerning the much wider claim area and where there was no real evidence of connection in relation to the Perth metropolitan area. Relevantly, the Full Court found at [178]-[179] and [187].
It is not uncommon for the traditional laws and customs of a community to connect that community to a claim area by connecting groups within the community both to each other (often in complex ways) and, respectively and immediately, to their own particular portions of the claim area (in the latter case by granting rights to, and imposing responsibilities on, each such group in respect of its portion). In such cases, it is entirely appropriate that the connection inquiry consider not merely evidence of the general connection of the claimant community to the claim area, but also the evidence of the particular connection of the particular groups and their members to their respective portions of the claim area: see Neowarrav State of Western [2003] FCA 1402 at [353]-[356]. The latter evidence, we would suggest, will ordinarily be necessary in some degree if the claimants’ assertion of connection is to be sufficiently manifest over the claim area as a whole – the more so, in communal claims, if rights and interests are held differentially across the community – though there can be cases where, because of long-standing occupancy of the claim area, the s 223(1)(b) inquiry (as distinct from that under s 223(1)(a)) will not loom large: cf Griffiths v Northern Territory (2006) 165 FCR 300 at [561]-[562].
What, in our view, is indispensable where a matter put in issue in a proceeding is whether connection has been maintained to a particular part of a claim area, are the needs:
(i)to examine the traditional laws and customs for s 223(1)(b) purposes as they relate to that area; and
(ii)to demonstrate that connection to that area has, in reality, been substantially maintained since the time of sovereignty.
…
If his Honour was to find that native title existed in relation to land and waters of the Perth Metropolitan Area, it had to be proved that the laws and customs that related to that area had continued to be acknowledged and observed without substantial interruption and that connection likewise had been substantially maintained. Those inquiries necessitated a consideration and evaluation of the evidence (historical and contemporary) as it related to that area from sovereignty to the present: cf the approach to these questions by Mansfield J in Risk TJ 240 ALR 74 in relation to the Darwin Area.
That decision has particular resonance for the present issues. The necessary connection must be shown in relation to Lake Torrens, or parts of it, notwithstanding its harsh physical features. And, moreover, it will not readily be inferred on any of these three Applications from the existence of adjoining native title rights at sovereignty that such connection, and therefore such rights, extended naturally into Lake Torrens because that inference (without more) would apply equally to the Kokatha People from the west and to the Adnyamathanha (or Kuyani) People from the east, although perhaps not so strongly to the Barngarla People from the south, except to a limited extent into the southern part of Lake Torrens.
There is some authority for the proposition that, while the Court may only make one determination of native title per area, where different groups are found to hold native title, subsidiary determinations within the principal determination can be made: Daniel v Western Australia (2004) 208 ALR 51 (Daniel) at [4]-[7]. I shall shortly further consider that decision.
There are further provisions of the NTA which also have a particular significance to the present issues.
Where there are overlapping claims of native title, the NTA provides for applications over the same area to be dealt with in the same proceedings with only one determination of native title per area. Relevantly, ss 67 and 68 provide:
67 Overlapping native title determination applications
(1)If 3 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications over the same area, they are dealt with in the same proceedings.
Splitting of application area
(2)Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.
68Only one determination of native title per area
(1)If there is an approved determination of native title (the first determination) in relation to a particular area, the Federal Court must not:
(2)conduct any proceeding relating to an application for another determination of native title; or
(3)make any other determination of native title;
(4)in relation to that area or to an area wholly within that area, except in the case of:
(5)an application as mentioned in subsection 13(1) to revoke or vary the first determination; or
(6)a review or appeal of the first determination.
Note: Paragraph 13(1)(a) providers that no native title determination application can be made in relation to an area for which there is already an approved determination of native title.
The identification of potentially competing claimants is facilitated by s 66 which requires the Native Title Registrar to give notice containing details of the application to persons or bodies specified in s 66(3)(a), including any person which may be affected by a determination in relation to the application: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67 (Badimia) at [61]. As noted earlier, despite that notification of the Kokatha Application and the Adnyamathanha Application, the Barngarla Application was only made belatedly. There are no doubt good reasons for that.
It is clear enough that, consistently with those provisions, the Court on the present hearing could conclude that one or other of the Applicants has established native title over some part or parts of Lake Torrens. Indeed, as later noted the Third Applicant has acknowledged that the claim by the Barngarla People in relation to the northern part of Lake Torrens is not made out, so the primary determination sought is only to an area over the southern part of Lake Torrens. It is then accepted that the Second Applicant should be recognised as holding native title over the northern part of Lake Torrens. Although I have not mentioned there the First Applicant, one available conclusion would be that the Kokatha People hold native title over only part of Lake Torrens.
However, the Second and Third Applicants in final submissions put a further contention that, in respect of what might be described loosely as the middle third of Lake Torrens, that there should be a determination that each of the Adnyamathanha People and the Barngarla People together as one native title claim group have shared common rights. The proposed determination then describes the native title holders together as the Adnyamathanha People (as described on the Adnyamathanha Application) and the Barngarla People (as described on the Barngarla Application) with the same specified rights in the “Shared Area” to be exercised in accordance with the traditional laws and customs of the (collective) native title holders.
I have significant reservations that, on the three Applications before the Court, it would be either within power or alternatively appropriate, to make such a determination, having regard to s 67 and 68 of the NTA as well as other provisions in the NTA.
As noted there is some foundation for such an approach in Daniel.
Nicholson J earlier in Daniel v Western Australia [2003] FCA 666 had found that two groups of persons (Ngarluma and Yindjibarndi Peoples) held native title in the claim area. Their joint application had apparently been authorised by each group, as separate persons were nominated on behalf of each group to constitute the composite applicant: see at [41].
To put the conclusions into context, that primary decision concerned the hearing of three competing claims. The second and third applicants’ claims were unsuccessful: see at [501, [527] and [528]. The first applicant’s claim on behalf of the Ngarluma People and the Yindjibarndi People jointly succeeded to a limited degree: see at [510] and [525]-[526].
In the case of the applicants, said to comprise a composite group of Ngarluma and Yindjibarndi People, the primary judge at [338]-[339] concluded that it was not necessary to make a specific finding as the areas over which group, or subgroup, claimed native title were different. There was a consistent focus on the Ngarluma People’s claim area and the Yindjibarndi People’s claim area separately, concerning the native title rights and interests claimed: see at [93] and [118]-[129] and variously elsewhere in the reasons. It appears the areas or sub-areas were physically separated by a significant ridge of hills. After the reasons were published, the parties were given an opportunity to address the appropriate form of the determination.
The primary judge then, in Daniel, decided that, in the circumstances, there could be one determination which in effect comprised two subsidiary determinations separately for each of those groups of people: at [4]-[23]. Although there is reference to “separate and overlapping determinations”, it appears from the determination that that there was slight overlapping of the separate areas of the Ngarluma and Yindjibarndi claim areas in the area of the ridge of hills. There was one determination that the Ngarluma People held native title over part of the claim area, and the Yindjibarndi People held native title over a different part of the claim area: Daniel v State of Western Australia [2005] FCA 536. A reference to the attached map does show some overlap of the separately coloured hatched areas to depict the two areas of determination along the ridge of hills.
It does not appear to have been considered whether s 68 precluded the “subsidiary determinations” which, to some extent, overlapped. However, it is apparent in any event from the reasoning in Daniel that the critical step in the reasoning was addressing the determination area in the application, in two separate steps, namely by asking over what part of the claim area had native title been shown to exist so that there should be a determination; and separately addressing s 225(a)-(e).
In Daniel, Nicholson J said at [4]-[9]
[4]In the draft determination attached to the July reasons it was proposed, as being consistent with the reasons, that the determination should provide as follows:
“8.Non-exclusive native title rights and interests exist in relation to the Determination Area and are held by the Ngarluma and Yindjibarndi peoples as the common law holders of the native title rights and interests as follows:
ŸNative title held by Ngarluma peoples is held in relation to the Ngarluma claim area (excluding the area of the sea beyond low water mark) or such lesser portion as may be referred to below in respect of any particular right and interest;
ŸNative title held by Yindjibarndi peoples is held in relation to the Yindjibarndi claim area or such lesser portion as may be referred to below in respect of any particular right and interest.”
The first respondents submit that, in respect of the overlap area, the preferable conclusion on the Court’s reasoning is that two distinct native titles are held severally by the two groups rather than one native title held collectively by the two groups.
[5]To consider this aspect it is necessary first to turn to the relevant provisions in the NTA. Section 94A of the NTA requires a determination to set out the details of the matters mentioned in s 225. Section 225 provides that 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’. It further provides that if it does exist there has to be a determination of, among other things, ‘who the persons, or each group of persons, holding the common or group rights comprising the native title are’. This supports the view that there should be a determination in relation to the determination area, which will include within it a determination of who holds common or group rights. There are thus two levels of determination: the principal determination being a determination of whether native title exists in relation to the particular area, and the subsidiary determinations being a determination of the matters set out in pars (a) – (e) of s 225. Where different groups are found to hold different native titles, necessarily there is a requirement for more than one subsidiary determination. Those paragraphs require determination of who holds native title and the nature and extent of the native title rights and interests. This statutory language accommodates variations in entitlement to rights between applicants and groups of applicants.
[6]This is supported by reference to s 61 which provides that persons who may make application for native title are authorised persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed. Therefore, the application is directed to ‘the particular native title claimed’ even though not all the claimants claim the same rights. As the July reasons state at [60], the first applicants initially brought a claim that there was a single composite community known as the Ngarluma and Yindjibarndi peoples but subsequently abandoned that claim in favour of one that there were two groups, namely, the Ngarluma peoples and Yindjibarndi peoples holding rights comprising native title rights. The findings in the July reasons accepted that position subject to exclusions and issues of extinguishment and any other qualifications set out in the text of each finding.
[7]A plain reading of ss 61, 223 and 225 supports the view that the determination should be approached on the basis that the Court should make a single principal determination in which subsidiary determinations are made on the issues raised in pars (a) – (e) of s 225. That approach may, in appropriate evidentiary circumstances, lead to a finding that different persons or groups of persons hold common or group rights comprising the native title. The statute requires the subsidiary determinations to be made in relation to each group: the focus is to be on the holder group rather than a geographical area (such as an overlap area). Importantly s 225 directs attention, in respect of a particular determination area, to who holds native title and to the nature and extent of the rights and interests so held. Looked at from the perspective of each group, the fact of overlap in a geographical area is relevant only to the extent of rights of each group and does not support the making of a determination in respect of a so-called overlap area of a determination of one native title held by two groups.
[8]As has been already stated, that, however, does not mean that there should be two principal determinations. What the Court is required by s 225 is to make ‘a determination of native title’. That determination is required in subsidiary determinations to identify the persons or group of persons holding common or group rights comprising the native title. Each subsidiary determination may vary as to its terms depending on the findings of fact concerning the native title rights and interests held by each claimant group. Nevertheless, there will still be one principal determination in respect of the determination area.
[9]This view is supported by the use of the description ‘the determination area’ as it appears in s 225(b) and s 225(c). That description is a reference to the particular area of land and waters in relation to which the claim was made and a determination is required; it does not require a focus only on the area where any native title is found to exist. Furthermore, the underlying rationale of ss 13, 67 and 68 of the NTA is that the issue of whether native title exists in any particular area is to be determined once only in respect of a determination area (i.e. in the one proceedings; subject to any revision application or appeal). For that reason the principal determination must relate to the determination area. Variations in native title holding by groups within the area are matters to be addressed in subsidiary determinations.
I have outlined such lay evidence as there was above, under the heading “Borders of country”. It was not persuasive, as it appeared to be inconsistent, speculative and somewhat indecisive.
I therefore propose to consider the Barngarla claim confined to the area referred generally in the evidence as the “south gap” area with the line drawn across the Lake on Exhibit S1. Even in respect of that much smaller area to the south, and more realistically adjacent to the northern boundary of the Barngarla No 2 determination where it touches on the southern part of Lake Torrens, the evidence to support a finding that the Barngarla People enjoyed native title rights according to their traditional laws and customs at the time of sovereignty is relatively slight.
I do not need to dwell on it because, in any event, I am not satisfied that the Barngarla People have maintained any connection they had to that part of the Lake in accordance with their traditional laws and customs in a continuous way substantially in accordance with their traditional laws and customs since sovereignty.
Again, as with the Adnyamathanha People’s claim, even if such a state of affairs were found to exist at the time of first European contact, it is not a case where it can be inferred that that state of affairs existed for the preceding 60 years or so to sovereignty. That is primarily because of the Kokatha Part A determination, but is reinforced by the evidence about the eastwards tending movement of the Western Desert Cultural Bloc and the accepted western movement of the Barngarla (and Kuyani) People from the western side of Lake Torrens over that period and presumably subsequent decades. The observations I have made on this topic in relation to the Adnyamathanha claim apply equally to the issue of continuity concerning the Barngarla claim.
The Barngarla application rests heavily on the expert anthropological evidence. The Fergie Lucas & Monaghan Report comprehensively considers Barngarla continuity of connection over some 100 pages by reference to the ethnographic record, mythology, genealogies, and other material from the Barngarla trial and fieldwork completed in 2015. Nonetheless, Fergie agreed that it is uncontroversial that the Barngarla evidence with respect to Lake Torrens is “impoverished”. Both Sutton and Willis remarked upon the lack of substance in the contemporary lay evidence supporting that connection. It is for that reason, as identified in the Fergie Lucas & Monaghan Report, that the issues of connection considered in that report are canvassed from the areas around Lake Torrens. As I have indicated above, I have not placed any weight on material to the extent that the anthropological evidence is inconsistent with the Kokatha Part A and Adnyamathanha No 1 determinations.
In addition, the evidence relied upon in the Fergie Lucas & Monaghan Report refers to “eastern” and “western” Barngarla and the divergent responsibilities and histories of the Barngarla People who identify more south-eastern or south-western parts of the Lake. For the reasons above, I am unable to place significant weight on the areas around Lake Torrens as forming a foundation to infer that any one group has traditional rights and interests in the claim area.
There was little persuasive lay evidence of continuous ongoing and contemporary connection with Lake Torrens, according to Barngarla traditional laws and customs. No Barngarla name was offered for Lake Torrens. With the exception of Andamooka Island, whose possible etymology may be Barngarla but which in any event is in common usage, none of the places on the Lake referred to in the linguistic evidence as etymologically indicative of Barngarla or any Lakes Society were identified by the lay witnesses. Such evidence as there was about Andamooka Island was inconsistent as to whether it was a men’s only place, or a place where both men and women could go, or a place where there was a particularly significant women’s area.
The senior male Barngarla witness had learned much of the mythology relating to Lake Torrens from a Western Desert man, Bill Lennon. The story he related of the Wilyaru man was not regarded as a secret story, and it was not given in much detail. The evidence of the wilkonies story was said not to run across the Lake.
The only real focus upon the area known as south gap was given by Linda Dare and by Rosalie Richards. The other evidence given by Linda Dare was more general in its nature geographically, that is more broadly concerning the Lake and its surrounds, and the evidence they gave concerning the Two Women from Parachilna, about the Marrakurli, and about responsibility for the ochre site at Pukartu (in the area of the Adnyamathanha No 1 determination), and more generally, was not confined to that southern-most section. I am cautious not to rely on the Barngarla stories as post-sovereignty and contemporary evidence to the extent that it places contemporary Barngarla rights and interests on the eastern or western side of Lake Torrens post-sovereignty.
I also found the variations in the mythology known and described by different Barngarla witnesses, to be indicative of fractured and localised knowledge, that is knowledge held by those Barngarla who identified more south-eastern or south-western parts of the Lake. The evidence in any event was that the Barngarla People acknowledge that such rights as they may have had in the Lake area are largely shared by Adnyamathanha People.
The absence of any significant reference to Barngarla occupation of that section of the Lake in the ethnographic evidence until relevantly recently, and on my overall assessment of the witnesses, means that I am not satisfied that there is a proper foundation for the contemporary connection with that section of the Lake required for the determination of native title rights and interests in that section of the Lake in favour of the Barngarla People.
CONCLUSION
In summary, I am not persuaded that a determination of native title in favour of any of the three applicants should be made in respect of any part of the claim area.
In the case of the Kokatha claim, I am not satisfied that they occupied or possessed the claim area according to their traditional laws and customs at sovereignty. Clearly, the very strong evidence concerning their mythology in relation to the western part of the claim area, and indeed the Lake itself, is now of great significance to the contemporary claimants, but I am not satisfied that it is other than of relatively recent origin for the reasons given. Consequently, s 223(1)(b) of the NTA is not satisfied.
Although the ethno-historical records provide some support for the Adnyamathanha (Kuyani) People being associated at least with part of the claim area, mainly in its northern part at the time of first European contact, it is difficult inferentially to take that back to the time of sovereignty. In addition, I have not found the evidence of continuing and contemporary connection sufficiently persuasive to conclude that (assuming the existence of native title rights and interests at sovereignty in some part of Lake Torrens) there has been a continual connection to the present time substantially in accordance with their traditional laws and customs so as to satisfy that requirement. There is certainly a remnant knowledge of sites, ceremonies and songs but it is broken and not coherent.
Similarly, in respect of the Barngarla claimant, whilst the ethno-historical record might support a connection to the southern part of the claim area at effective sovereignty, that is at the time of first European contact, I would not draw the inference that that represented the state of affairs at sovereignty. In addition, I do not think that the evidence shows a continuing connection through and substantially in accordance with their traditional laws and customs, which provides that connection at sovereignty and to the present time. I have given reasons for that conclusion. As I have noted, the evidence did not provide a coherent and detailed picture as to where the area covered by Barngarla laws and customs existed, and there was little independent knowledge of laws and customs to serve the proof of a continuing traditional connection to Lake Torrens or to Andamooka Island.
The conclusion reached, having regard to the anthropological evidence referred to, is somewhat counter-intuitive of an appropriate starting point. Each of the claim groups now has contemporary significant and credible spiritual connection to parts of Lake Torrens, but it is not possible, in my view, presently to prioritise one set of spiritual beliefs over the other for the purposes of a finding in terms of ss 223 and 225 of the NTA. As Sutton said in the course of his cross-examination, it is the abutment between the Lakes Cultural Bloc and the Western Desert Cultural Bloc that the Court is being requested to determine, and to use his word which, on the evidence I think is appropriate, to “re-imagine” what existed in 1788. The competing or inconsistent spiritual beliefs, which clearly exist, tend to demonstrate also the lack of the continuance of a dominant particular set of spiritual beliefs of one of the three Claim Groups over that of the others for the purposes of s 223(1)(b) of the NTA from sovereignty to contemporary times.
I note that neither the Adnyamathanha nor the Kokatha Applicants, as an alternative position, put forward that their claims had been made out only in respect of a part or parts of Lake Torrens extending to the east from the western side in the case of the Kokatha, or extending west from the eastern side in the case of the Adnyamathanha. As noted earlier in these reasons, the drawing of particular boundaries in a precise way is a consequence of the NTA itself. As a matter of history, it is probably inevitable that such boundaries waxed and waned, and indeed at the areas of intersection may have been loose and in a practical sense shared. Given the features of Lake Torrens, it would not be surprising if that were the position in relation to it. It appears that the respective sets of contemporary spiritual beliefs in relation to the area or areas of Lake Torrens to which I have referred have to the present been able to be accommodated without significant interference or distress over the last decades, and there is no reason to suspect that that will not continue in the future notwithstanding the decision which I have made in this matter.
It is appropriate briefly to refer to the issue of extinguishment.
EXTINGUISHMENT
The State tendered, without objection, the affidavit of William Watt sworn on 30 October 2015, containing maps of the claim area with reference to the tenements. There was no other evidence led by any party in relation to the issue of extinguishment.
The tenure for Lake Torrens comprises :
(1)the area of the Lake Torrens National Park (being Crown Record 5773/872 Section 1532 Out of Hundreds (Andamooka, Copley, Parachilna and Torrens) (the National Park); and
(2)Andamooka Island being portions of:
(a)Crown Lease Volume 1629 Folio 3 Pastoral No. 2333A Block 1267 Out of Hundreds (Andamooka) (Andamooka Island Pastoral Lease); and
(b)Crown Lease Volume 1279 Folio 26 Pastoral No. 2211 Block 869 Out of Hundreds (Andamooka and Torrens) (Bosworth Pastoral Lease).
The effect of those two pastoral leases over Andamooka Island is not a matter of dispute. Each of the Andamooka Island Pastoral Lease and the Bosworth Pastoral Lease is said by the State to be valid and to constitute a previous non-exclusive possession act: s 23F of the NTA. Each of the Applicants either made submissions to that effect or did not dispute that. Douglas Greenfield, the pastoralist with interests in those leases adopted the State's submissions. They are valid because each pre-dated the Racial Discrimination Act 1975 (Cth) (RDA). It is not necessary to address those matters in further detail. In my view each of Andamooka Island Pastoral Lease and Bosworth Pastoral lease are valid non-exclusive possession acts under the NTA, and, if native title rights and interests were established over those areas, would partially extinguish those rights and interests to the extent of the inconsistency: see Ward HC at [191]-[194] and at [471]; De Rose v South Australia [2002] FCA 1342 at [541].
There are also a large number of mining, petroleum and geothermal exploration tenements (or applications) over parts of Lake Torrens. Such activities have previously been opposed by the Kokatha People, as noted above: see also Starkey v South Australia [2011] SASC 34.
Section 63F of the Mining Act 1971 (SA) states:
63F-Qualification of rights conferred by exploration authority
(1)An exploration authority confers no right to carry out mining operations on native title land unless-
(a)the mining operations do not affect native title (i.e. they are not wholly or partly inconsistent with the continued existence, enjoyment or exercise of rights deriving from native title); or
(b)a declaration is made under the law of the State or the Commonwealth to the effect that the land is not subject to native title or
(c)an indigenous land use agreement registered under the Native Title Act 1993 (Cwth) provides that statutory rights to negotiate are not intend to apply in relation to the mining operations.
(2)However, a person who holds an exploration authority that would, if land were not native title land, authorise mining operations on the land may acquire the right to carry out mining operations on the land (that affect native title) from an agreement or determination authorising the operations under this Part.
Section 49 of the Opal Mining Act 1995 (SA) is in relevantly similar terms.
I accept that the submissions of the parties that if native title were found to exist in Lake Torrens (or any part of it), that the Lake (or that part of it in which native title were found) would be native title land for the purposes of the Mining Act 1971 and the Opal Mining Act 1995.
The remaining issue to be addressed concerns the National Park. The relevant legislation and principles were largely not a matter of dispute.
There was some discrepancy as to whether pastoral leases were ever granted over parts of what became the National Park. That is because in his affidavit, Mr Watts refers to difficulties with early mapping processes which provide a visual impression that certain leases included the bed of the Lake. Nonetheless, it is his opinion that it “was not the intent as pastoral leases were issued over the land suitable for pastoral purposes… the issues with the representation of the leases on plans and documents has to be viewed on the basis that none of these boundaries were surveyed, nor indeed was the lake edge”. He further notes that it was not until after the adoption of the modern 1:250 000 map sheet base for pastoral lease maps that a degree of accuracy for the underlying topography was achieved. The State submitted that the Court may proceed on the basis that none of the area of the National Park was ever the subject of any pastoral lease prior to the constitution and vesting of the Park. In the absence of submissions to the contrary, I proceed on that basis.
The National Park was proclaimed on 19 December 1991 (the Proclamation) under ss 28(1) and 43(2) of the National Parks and Wildlife Act 1972 (SA) (NPW Act) as follows:
The land specified in the schedule [namely, Block 1532 (Lake Torrens), Out of Hundreds (Andamooka, Copley, Parachilna and Torrens)] is constituted as a national park and is assigned the name Lake Torrens National Park.
This area of land includes the entirety of Lake Torrens as claimed in these Applications with the exception of Andamooka Island, that is, it concerns the surface of the Lake.
As at 19 December 1991, s 5 of the NPW Act defined “national park” as “land constituted, and for the time being continuing, as a national park under Part III”. Section 28(1) of the NPW Act (which fell within Part III), provided:
The Governor may, by proclamation-
(1)constitute as a national park any specified Crown land the Governor considers to be of national significance by reason of the wildlife or natural features of that land; and
(2)assign a name to a national park so constituted.
Section 35 of the NPW Act stated:
(1)Subject to Part IIIA, the Minister has the control and administration of all reserves constituted under this Act.
(2)All such reserves are vested in the Crown.
(3)The Minister may grant on appropriate terms and conditions a lease or licence entitling a person to rights of entry, use or occupation in respect of a reserve.
(4)Any lease or license granted in respect of land constituted as a reserve under this Act, and in force immediately before the land is so constituted continues, subject to its terms and conditions, in force for the remainder of the term for which it was granted as if it had been granted by the Minister under this section.
Section 5 of the NPW Act defined a “reserve” as “any national park, conservation park, game reserve, recreation park or regional reserve constituted under this Act”.
Therefore, following the constitution of the National Park by the Proclamation, the land the subject of the Proclamation vested in the Crown under s 35(2) of the NPW Act.
The National Park was proclaimed as what is described by the State as a dual proclamation park under s 43(2) of the NPW Act. Section 43 provides:
(1)Subject to subjection 2, rights of entry, prospecting, exploration or mining cannot be acquired or exercised pursuant to the Mining Act 1971, the Petroleum Act 1940 or the Petroleum (Submerged Lands) Act 1982, in respect of land constituting a reserve.
(2)The Governor may, by proclamation, declare that subject to any conditions specified in the proclamation rights of entry, prospecting, exploration or mining may be acquired and exercised in respect of land constituting a reserve or portion of a reserve, to which subsection (1) applies.
…
(5)A proclamation under this section in respect of land constituting a national park … must not be made unless:
a.is made for the purpose of continuing rights of entry, prospecting, exploration or mining vested in any person immediately before the commencement of this Act in respect of that land;
b.the proclamation is made simultaneously with the proclamation constituting that land a national park or a conservation park;
Clauses 2 to 4 of the Proclamation preserved existing and future rights of entry for prospecting, exploration or mining under the Mining Act 1971 or the Petroleum Act 1940 but required the holders of such rights to comply with the conditions set out in the proclamation when exercising the rights.
The constitution and vesting of the National Park was not a previous exclusive possession act or a previous non-exclusive possession act for the purposes of the NTA or the Native Title (South Australia) Act 1994 (SA) (NT(SA) Act) ss 23B and 23F.
The State submitted that the validity and effect of the Proclamation and vesting are determined under the past act provisions of the NTA, the Racial Discrimination Act 1975 (Cth) and the NT(SA) Act.
An act is a past act under the NTA in relation to the land or waters if (subject to subsection (10)):
(a) Either:
(i)at any particular time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or
(ii)at any time before January 1994 when native title existed in relation to particular land or waters, any other act took place; and
(b)Apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist
[emphasis added]
The proclamation and vesting took place in 1991 concerning the bed of Lake Torrens. Section 28 of the NPW Act only allowed the constitution of a reserve on Crown land but the Act contemplated and made provision for holders of existing leases and licences over that land. Section 35(4) provided that any lease or license in force before the constitution of a reserve, continued subject to its terms and conditions for the remainder of the term for which it had been granted, as if it had been granted by the Minister under s 35 of the NPW Act. Accordingly, the only rights in land that were extinguished by the constitution of the National Park under s 28(1) of the NPW Act and its consequential vesting under s 35(2) were native title rights and interests.
As such, I am satisfied that invalidity arises under s 10(1) of the RDA as any native title holders would not enjoy their rights and interests, to the same extent as holders of other forms of title, and the proclamation and vesting was a valid past act: s 32 NT(SA) Act. That was not a matter of dispute between the parties.
The NTA and the NT(SA) provide for the validation of past acts and set out their extinguishing effects. Past acts attributable to the State are valid, and are taken always to have been valid: s 32 of the NT(SA) Act. Sections 33 to 36 of the NT(SA) Act set out the extinguishing effects of Category A, B, C and D past acts.
It was further agreed by each of the State, the First Applicant, the Second Applicant and to some extent the Third Applicant (adopting the submissions of the First Applicant on extinguishment) that this was a Category D past act, as defined in ss 228(2) and 232 of the NTA. To the extent that the Third Applicant submitted that the vesting of that portion of Lake Torrens comprising the National Park was not a Category D past act, the contention was not expanded on. I conclude that the proclamation and vesting was a Category D past act, validated by s 32 of the NT(SA) Act.
Section 35 of the NT(SA) Act provides that the non-extinguishment principle applies to Category D past acts done by the State.
The dispute between the parties concerns the application of the non-extinguishment principle in 238 of the NTA in the present circumstances. Relevantly, s 238 infers that native title is not extinguished, either wholly or partly, but:
Rights and interests wholly ineffective
(3)In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.
Rights and interests partly ineffective
(4)If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.
Where the act or its effects are later removed, either wholly or to an extent, the native title rights then again have effect in full or to that extent.
The State submitted that the vesting of the land of the National Park in the Crown under s 35 of the NPW Act vested the legal estate in fee simple in the Crown. Consequently, it said that the effect of the constitution of the National Park by the Proclamation and vesting, being wholly inconsistent with native title in the entire area of the Lake, was that any native title found to exist continues to exist in its entirety, but the native title rights and interests have no effect whilst the Proclamation and vesting remain in force.
The Applicants disputed that the vesting under the NPW Act constituted a vesting of an estate in fee simple or of exclusive possession.
The effect of a reservation was discussed by the High Court in Ward HC. The majority held that the relevant inquiry is (at [215]) :
…whether rights have been created in others that are rights inconsistent with native title rights and interests, and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Use of the land may suggest, it may even demonstrate, that such rights have been created or asserted, but the basic inquiry is about inconsistency of rights, not inconsistency of use. Further, as has already been pointed out, it is often necessary to examine inconsistency by reference to the particular native title right and interest concerned.
In Western Australia v Brown 253 CLR 507 (Brown HC) (per French CJ, Hayne, Kiefel, Gageler and Keane JJ), the Court considered when rights will be inconsistent under the heading “Determining inconsistency” at [37] - [38]:
The determination of whether two or more rights are inconsistent is also an objective inquiry. The question of inconsistency of rights can always be decided at the time of the grant of the allegedly inconsistent rights. And it must be decided by reference to the nature and content of the rights as they stood at the time of the grant. At that time, were the rights as granted inconsistent with the relevant native title rights and interests? As these reasons will later demonstrate, to the extent to which the decision in De Rose [No 2] countenances a notion of contingent extinguishment (contingent on the later performance of some act in exercise of the "potentially inconsistent" rights granted), it is wrong and should not be followed. In the present case, then, the question of inconsistency is to be determined at the time of the grant of the relevant mineral leases. What the joint venturers did or did not do in exercise of the rights granted under the mineral leases is important (60) only to the extent to which it directs attention to the nature and content of the rights which were granted.
There cannot be "degrees of inconsistency of rights". "Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment" (61). As counsel for the native title holders put the point in argument in this Court, inconsistency is that state of affairs where "the existence of one right necessarily implies the non-existence of the other". And one right necessarily implies the non-existence of the other when there is logical antinomy between them: that is, when a statement asserting the existence of one right cannot, without logical contradiction, stand at the same time as a statement asserting the existence of the other right.
In Ward HC, the Court considered s 33 of the Land Act 1933 (WA) which empowered the Governor to direct that a reserve “shall vest in and be held by” a named body or person “in trust for the like or other public purposes, to be specified”.
In Ward HC the majority said at [219]-[220]:
…by designating land as a reserve for a public purpose, even a purpose as broadly described as "public utility", the executive, acting pursuant to legislative authority, decided the use or uses to which the land could be put. The executive thus exercised the power that was asserted at settlement by saying how the land could be used. The exercise of that power was inconsistent with any continued exercise of power by native title holders to decide how the land could or could not be used. The executive had taken to itself and asserted (pursuant to the authority conferred in that regard by statute) the right to say how the land could be used. This step was not, however, necessarily inconsistent with the native title holders continuing to use the land in whatever way they had, according to traditional laws and customs, been entitled to use it before its reservation.
The reason that the right to use the land may have survived reservation is the same reason that the grant of a pastoral lease extinguished the right to control access to the land, but not necessarily all the rights of native title holders to use it in accordance with the rights held under traditional laws or customs.
The Court found that vesting under s 33 vests the legal estate in fee simple to the land in that body or person and obliges the body or person to hold the land on trust for the stated purposes. Where the reservation of land pursuant to the Land Acts, occurred after the RDA had come into force and where the area was not and had not previously been the subject of a pastoral lease, that was inconsistent with the RDA and “would, in effect, suspend the native title right to speak for country for so long as the land remained reserved”: at [249], [468].
In Brown HC the Court considered two mineral leases granted by the State of Western Australia, “for the purposes but upon and subject to the terms, covenants and conditions in the Agreement”. The Agreement provided expressly that the joint venturers must allow not only the State but also third parties to have access over the land the subject of the mineral lease, provided that the access did not “unduly prejudice or interfere with” the joint venturers’ operations: see [44]-[45]. The Court found at [46] that the unqualified mineral leases did not give the joint venturers:
a right of the kind identified (67) in Fejo: the unqualified right to exclude any and everyone from access to the land, for any reason or no reason. The joint venturers could prevent anyone else from using the land for mining purposes and could use any part of the land for the extraction of iron ore or for any of the associated purposes described in the State Agreement (such as building a town, roads and railway). It may be accepted that the grant of these rights would be inconsistent with a native title right of the kind which was at issue in Ward: a native title right to control access to land (for any purpose or no purpose). But no right of that kind was in issue in this case. Neither instrument gave the joint venturers the right to exclusive possession of the land.
By way of example, the Court said at [222]:
…reservation, being inconsistent with the continued existence of a native title right to control the use of or access to the land, would extinguish that right and, by hypothesis, it would affect only that native title right.
When assessing the content of the rights created, the relevant starting point is the legislation. It is not what has been held about other statutes, even by courts of high authority: Ward HC [228].
It is necessary to consider the Proclamation and the consequential vesting in its context. The long title of the NPW Act is:
An Act to provide for the establishment and management of reserves for public benefit and enjoyment; to provide for the conservation of wildlife in a natural environment; and for other purposes.
Section 35 of the NPW Act provides for the control of reserves. Sections 36-38 provide for the management of reserves in accordance with specified public interest and environmental objectives, and the preparation of management plans. If the Minister is satisfied for the purpose of protecting human life or conserving native plants or animals, the Minister may restrict access to any portion of the reserve by declaring it to be a prohibited area: s 42. Section 43 enables the Governor to declare that rights of entry, prospecting, exploration or mining may be acquired and exercised.
The First Applicant submits that a reservation under the NPW Act does no more than affect the native title holder’s right to decide how the land could or could not be used. It says that the reservation was not necessarily inconsistent with native title holders continuing to use the land in whatever way previously they had done so, according to traditional laws and customs.
As was observed during the hearing, s 33 of the Land Act 1933 (WA) is different from the expression in s 35 of the NPW Act. The Land Act 1933 vests rights in different persons in any person or body, whereas by the NPW Act rights are vested in the Crown. The majority found in Ward HC “the term ‘vest’ is of elastic import” and “vesting lands in a public body for public purposes ‘may pass only such powers of control and management and such proprietary interests as may be necessary to enable that body to discharge its public functions effectively’” at [225].
In my view, the Proclamation and the consequential vesting of Lake Torrens in the State was not wholly inconsistent with some native title rights and interests continuing to exist and to be enjoyed in the entire area of the Lake (putting aside Andamooka Island for reasons already given. It would not have operated to exclude Aboriginal persons holding native title from entering on to the Lake in accordance with their traditional laws and customs, or from “harvesting” (albeit a meagre harvest) the resources of the Lake surface. The control and administration, vested in the State, under s 35 of the NPW Act would not necessarily have had that consequence. I do not read s 35(3) as meaning that entry of such Indigenous persons on to the Lake became forbidden. The consequences of the exercise of other Ministerial powers under ss 35, 42 or 53 are dependent on the exercise of those particular powers.
Obviously, any native title right to control access to the Lake surface, and to decide how and where the Lake surface could or could not be used, were displaced, and to the extent that existing other interests were thereby recognised, native title rights were also to that extent displaced.
In view of the conclusions I have otherwise reached, those views are somewhat academic. It is sufficient to say that, in any event, any native title rights and interests in the Lake surface which were inconsistent with the Proclamation and its consequential vesting are subject to, but not extinguished by, the Proclamation and the consequential vesting of the Lake in the State. They are suspended for the period that the Lake remains as a national park.
CONCLUSION
For the reasons given, in my view, each of the Applications does not succeed. Each is therefore dismissed.
I certify that the preceding eight hundred and twenty (820) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 9 August 2016
ANNEXURE A
ANNEXURE B
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