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Lake Torrens Overlap Proceedings (No 3)

Lake Torrens Overlap Proceedings (No 3)

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCA 899
Decision Date: 9 August 2016

CaseChat Overview and Summary

The case of Lake Torrens Overlap Proceedings (No 3) involved multiple native title applications over the Lake Torrens area in South Australia, with claims from the Kokatha, Adnyamathanha, and Barngarla peoples. The Federal Court was tasked with determining whether any of the three groups possessed native title rights and interests in the lake area. The case centred on whether the claimants could demonstrate a continuous connection to the land and waters of Lake Torrens from the time of British sovereignty to the present. The Court was also required to consider whether the proclamation and vesting of Lake Torrens as a national park could extinguish native title rights, given the non-extinguishment principle outlined in the Native Title Act 1993 (Cth).

The Court examined the evidence presented by each group to determine if they had a traditional connection to the area, as required by the Native Title Act. The Court found that while the claimants had spiritual connections and some ethno-historical evidence of association with parts of the lake, there was insufficient evidence to prove a continuous connection to the entire claim area from the time of sovereignty. The Court noted that the ethnographic evidence did not support a strong connection for the Barngarla people to a particular section of the lake, and the claims of the Kokatha and Adnyamathanha peoples also lacked the necessary evidence of a continuous connection from sovereignty to the present. The Court concluded that none of the groups had established the requisite connection to the land for native title rights to be recognised.

Given the findings, the Court dismissed all three native title applications. The implications of these findings for mining activities under the Mining Act 1971 (SA) and the Opal Mining Act 1995 (SA) were briefly addressed, with the Court noting that if native title had been recognised, it would have affected the authorisation of mining operations in the area. However, as no native title was found, these considerations did not impact the outcome of the case. The Court also noted that the proclamation and vesting of Lake Torrens as a national park did not extinguish native title rights, as the exercise of Ministerial powers under the National Parks and Wildlife Act 1972 (SA) was not inconsistent with some native title rights and interests continuing to exist.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.

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…