FEDERAL COURT OF AUSTRALIA
O’Donnell on behalf of the Wilyakali Native Title Claim v State of South Australia [2023] FCA 1000
File numbers: SAD 33 of 2012
SAD 89 of 2022Judgment of: RAPER J Date of judgment: 28 August 2023 Catchwords: NATIVE TITLE – application for consent determination of native title – where the parties filed agreed proposed orders and determination of native title – whether the preconditions in s 87 of the Native Title Act 1993 (Cth) are satisfied – whether the proposed orders and determination are within the power of the Court – whether appropriate to make the proposed orders and determination – held: orders and determination made Legislation: Native Title Act 1993 (Cth) ss 24EB, 47A, 47B, 55, 56, 57, 57(2), 57(2)(b), 57(3), 66, 66(2), 66(2A), 66(3)(a), 66(3)(b), 66(3)(d), 66(10)(b), 66(10)(c), 67(1), 68, 87, 94A, 223, 223(1), 223(2), 225, 225(a), 225(b), 225(c), 225(d), 225(e) Cases cited: Branson on behalf of Ngadjuri Nation #2 Native Claim v State of South Australia [2023] FCA 715
Freddie v Northern Territory [2017] FCA 867
Members of the Yorta YortaAboriginal Community v Victoria [2002] HCA 58; 214 CLR 422
Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109
Division: General Division Registry: South Australia National Practice Area: Native Title Number of paragraphs: 67 Date of last submissions: 30 June 2023 Date of hearing: 28 August 2023 Solicitor for the Applicants: Mr S Kenny of Camatta Lempens Solicitor for the State of South Australia: Ms B Pearks and Ms S Tucker of Crown Solicitor’s Office (SA) Solicitor for the Pastoralist Respondents: Ms C Divakaran and Mr T Mellor of Mellor Olsson Counsel for Havilah Resources NL: Havilah Resources NL did not appear Solicitor for Havilah Resources NL: Steed Lawyers Counsel for Lodestone Mines Limited: Lodestone Mines Limited did not appear Solicitor for Magnetite Mines Limited: Mr E Vickery of Minter Ellison Counsel for Telstra Corporation Limited and Amplitel Pty Ltd: Telstra Corporation Limited and Amplitel Pty Ltd did not appear Solicitor for Telstra Corporation Limited and Amplitel Pty Ltd: King & Wood Mallesons
Table of Corrections 21 September 2023 In paragraph [62], the name “Wilyakali Native Title Corporation” has been replaced with “Wilyakali Native Title Aboriginal Corporation”. ORDERS
SAD 89 of 2022 BETWEEN: MAUREEN O'DONNELL (DECEASED)
Applicant
GLEN O'DONNELL
Applicant
DULCIE O'DONNELL
Applicant
AND: STATE OF SOUTH AUSTRALIA
Respondent
THE MUTOOROO PASTORAL CO PTY LTD
Respondent
WORTHING PROPERTIES PTY LTD (and others named in the Schedule)
Respondent
ORDER MADE BY:
RAPER J
DATE OF ORDER:
28 AUGUST 2023
THE COURT NOTES THAT:
A.Native Title Determination Application No. SAD 89 of 2022 (formerly SAD 33 of 2012) (the Application) was first lodged with the Federal Court of Australia on 8 February 2012.
B.On 14 December 2018, the area covering the whole area of the Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim (SAD 6001 of 1998) was determined by consent: Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993.
C.This area was a combination of the undetermined Adnyamathanha No 1 Native Title Determination Application (SAD 6001 of 1998), the whole of the Ngadjuri Nation Native Title Determination Application (SAD 147 of 2010) (Ngadjuri claim) and the whole of the Wilyakali No 2 Native Title Determination Application (SAD 417 of 2015) (Wilyakali No 2 claim).
D.The balance of the area of the Application not covered by the consent determination for the Wilyakali No 2 claim and, as amended to resolve the area of overlap, is referred to as Wilyakali No 1.
E.The Application was amended in the form of documents filed on 15 March 2021 and resolved any overlap by forming a common boundary between the Application and the remainder of the formerly overlapping the Ngadjuri Nation No 2 claim (SAD 304 of 2011).
F.The Applicant and the First Respondent (State) have negotiated in good faith and with full advice from their legal representatives, including counsel, and experts, and have reached a compromise which is set out in an Indigenous Land Use Agreement (Wilyakali Settlement ILUA) and in this Determination of native title. This Determination will take effect upon the registration of the ILUA under Division 3 of Part 2 of the Native Title Act 1993 (Cth) (NTA).
G.The Applicant and the State have carried out an analysis of the historical tenure records within the Wilyakali No.1 (Determination Area). The tenure position reflected in this Determination represents a compromise that has been agreed between the parties for the purposes of settlement. The Applicant and the State agree that the Determination Area (including the Native Title Land and the area where native title does not exist) was Wilyakali country at sovereignty.
H.The parties acknowledge that, when this Determination takes effect, the members of the native title claim group described below, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the Native Title Holders for the Native Title Land.
Being satisfied that a determination in the terms sought by the parties would be within the power of the Court and it appearing to the Court appropriate to do so:
THE COURT ORDERS THAT:
1.There be a Determination of native title in the Determination Area in the terms set out at paragraphs 6 to 16 below.
2.The Determination take effect upon the ILUA being registered on the Register of Indigenous Land Use Agreements.
3.In the event that the ILUA is not registered on the Register of Indigenous Land Use Agreements within eight (8) months from the date of this order, or such later time as the Court may order, the matter is to be listed for further directions.
4.The Applicant (prior to the Determination taking effect) or the Prescribed Body Corporate (after the Determination takes effect), the State and any other respondent have liberty to apply on 14 days’ notice to a single judge of the Court:
(a)if that party considers that the ILUA will not be registered on the Register of Indigenous Land Use Agreements within 8 months of the date of this order;
(b)to establish the precise location and boundaries of any Public Works and adjacent land and waters referred to in items 2 or 3 of Schedule 4;
(c)to determine the effect on native title rights and interests of any Public Works as referred to in item 3 of Schedule 4.
5.Each party to the proceeding is to bear its own costs.
THE COURT DETERMINES THAT:
Interpretation
6.In this Determination, including its schedules:
(a)unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Part 15 of the NTA; and
(b)in the event of an inconsistency between a written description of an area in a schedule and the depiction of that area on the maps in Schedule 2, the written description shall prevail.
Determination Area
7.Schedule 1 describes the external boundaries of the Determination Area.
Areas within Determination Area where native title exists (Native Title Land)
8.Subject to Schedule 4, native title exists in the land and waters described in Schedule 3.
Areas within Determination Area where native title does not exist
9.Pursuant to section 225 of the NTA, native title does not exist in relation to all of the land and waters comprised in those areas described in Schedule 4.
Native Title Holders
10.Under the traditional laws and customs of the Wilyakali People the Native Title Holders are those living Aboriginal people who are the descendants (including by adoption, as defined below) of the following apical ancestors:
(i)Jack Tyler and his niece Minnie Crozier (Bates);
(ii)Mary Walgu; and
(iii)Outalpa Dick;
and who identify as Wilyakali and are recognised by the other Native Title Holders under those traditional laws and customs as having rights and interests in the Determination Area (collectively, Native Title Holders).
In the foregoing, the words ‘including by adoption’ are intended to include as Native Title Holders:
(a) those Aboriginal persons, who were or are raised as children and as part of the families of any of the apical ancestors or their biological descendants; and
(b) descendants of the Aboriginal persons described in (a) above.
Rights and Interests
11.Subject to paragraphs 12, 13 and 14, the nature and extent of the native title rights and interests in the Native Title Land are the non-exclusive rights to use and enjoy those lands and waters, being:
(a)The right to access and move about;
(b)The right to live, to camp and to erect shelters and other structures;
(c)The right to hunt and fish;
(d)The right to gather and use the natural resources such as food, plants, timber, resin, ochre and soil;
(e)The right to cook and to light fires for cooking and camping purposes;
(f)The right to use the natural water resources, subject to the Landscape South Australia Act 2019 (SA);
(g)The right to distribute, trade or exchange the natural resources;
(h)The right to conduct ceremonies and hold meetings;
(i)The right to engage and participate in cultural activities including those relating to births and deaths;
(j)The right to carry out and maintain burials of deceased native title holders and of their ancestors;
(k)The right to teach on the Native Title Land the physical and spiritual attributes of locations and sites;
(l)The right to visit, maintain and preserve sites and places of cultural or spiritual significance to Native Title Holders under their traditional laws and customs;
(m)the right to be accompanied on the land and waters by those people who, though not Wilyakali persons, are
(i)spouses of Wilyakali persons; or
(ii)people required by the traditional laws and customs for the performance of ceremonies or cultural activities; or
(iii)people who have rights in relation to the Native Title Land according to traditional laws and customs acknowledged by the Native Title Holders.
General Limitations
12.The native title rights and interests set out at paragraph 11 are for personal, domestic and communal use but do not include the right to trade in, or the commercial use of, the Native Title Land or the resources from it.
13.The native title rights and interests described in paragraph 11 do not confer possession, occupation, use and enjoyment of the land and waters on the Native Title Holders to the exclusion of others.
14.The native title rights and interests set out at paragraph 11 are subject to and exercisable in accordance with:
(a)the traditional laws and customs of the Native Title Holders; and
(b)the valid laws of the State and Commonwealth, including the common law.
Other Interests and Relationship with Native Title
15.The nature and extent of other interests in the Native Title Land are:
(a)the interests of the Crown in right of the State of South Australia;
(b)the interests of the Commonwealth of Australia, if any;
(c)in relation to reserves as defined in the National Parks and Wildlife Act 1972 (SA):
(i)the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA); and
(ii)the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA); and
(d)interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power including, but not limited to, rights and interests granted or recognised pursuant to the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Native Vegetation Act 1991 (SA), Fisheries Management Act 2007 (SA), Landscape South Australia Act 2019 (SA), Mining Act 1971 (SA), and Petroleum and Geothermal Energy Act 2000 (SA), all as amended from time to time;
(e)rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth;
(f)the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;
(g)the rights and interests of all parties to the ILUA;
(h)the rights and interests of Telstra Corporation Limited (ACN 051 775 556) and Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their related bodies corporate and successors in title:
(i)as the owners or operators of telecommunications facilities within the Native Title Land;
(ii)created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
1.to inspect land;
2.to install, occupy and operate telecommunications facilities; and
3.to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(iii)for their employees, agents or contractors to access their telecommunications facilities in and in the vicinity of the Native Title Land in performance of their duties; and
(iv)under any lease, licence, permit, access agreement or easement relating to their telecommunications facilities within the Native Title Land;
(i)the rights and interests of Havilah Resources Ltd, (Havilah) (including its wholly owned subsidiaries Iron Genesis Pty Ltd, (Iron Genesis) Copper Aura Pty Ltd (Copper Aura) Maldorky Iron Pty Ltd (Maldorky) and Mutooroo Metals Pty Ltd (Mutooroo)) and their related entities and successors in title from time to time in the mineral tenements listed below:
(i)Havilah,- as holder of exploration licence numbers 5853, 5903, 5904, 5956, 6194, 6203, 6211, 6258, 6355, 6359, 6360, 6428, 6567, 6593, 6660;
(ii)Iron Genesis – as holder of exploration licence numbers 5848, 6041, 6054, 6280 and 6361;
(iii)Copper Aura- as holder of exploration licence numbers 5882, 6163, 6592 and 6657;
(iv)Maldorky- as holder of registered mineral claim numbers 4364, 4271, 4272, 4273 and 4374;
(v)Mutooroo – as holder of registered mineral claim numbers 3565 and 3566,
in each case granted pursuant to the Mining Act 1971 (SA) and any subsequent licence, for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties
(j)the rights and interests of Magnetite Mines Ltd (Magnetite) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i)Magnetite – as the holder of exploration licence number 6037 and as applicant for exploration licence application number 2020/00133 granted or applied for pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties.
(k)the rights and interests of Boss Uranium Ltd (Boss) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i)Boss – as the holder of exploration licence number 6510 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(l)the rights and interests of Hamelin Gully Pty Ltd (Hamelin) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i)Hamelin – as the holder of exploration licence numbers 6009, 6046 and 6646 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(m)the rights and interests of Lodestone Mines Pty Ltd (Lodestone) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i)Lodestone – as the holder of exploration licence numbers 6006 and 6117, granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(n)the rights and interests of Investigator Resources Ltd (including its wholly owned subsidiary Gawler Resources Pty Ltd (Gawler)) and their related entities and successors in title from time to time in the mineral tenements listed below:
(i)Gawler – as the holder of exploration licence numbers 5938, 6253 and 6345 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(o)the rights and interests of Renascor Resources Ltd (including its wholly owned subsidiary Astra Resources Pty Ltd (Astra)) and their related entities and successors in title from time to time in the mineral tenements listed below:
(i)Astra – as the holder of exploration licence number 6451 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(p)the rights and interests of PepinNini Minerals Ltd (PNN) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i)PNN – as the applicant for exploration licence application number 2020/00136 applied for pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
16.The relationship between the native title rights and interests in the Native Title Land that are described in paragraph 11 and the other rights and interests that are described in paragraph 16 (the Other Interests) is that:
(a)to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests;
(b)the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of the NTA or the Native Title (South Australia) Act 1994 (SA), do not extinguish them.
AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS:
17.The native title is not to be held on trust.
18.The Wilyakali Native Title Aboriginal Corporation ICN 10042 is to:
(a)be the prescribed body corporate for the purposes of section 57(2) of the NTA; and
(b)the functions mentioned in section 57(3) of the NTA after becoming the registered native title body corporate in relation to the Native Title Land.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE 1
Location of and areas comprising the Determination AreaExternal Boundary Description
The application area covers all the land and waters within the external boundary described as: Commencing at a point on the New South Wales – South Australia State Border at Latitude 31.249987° South and extending southerly along that state border to Latitude 32.766653° South; then south westerly to the intersection with the eastern boundary of Pastoral Lease PE002224 (Quondong) at Latitude 32.869397° South, then south westerly, northerly, and north westerly passing through the following coordinate points:
Longitude (East) Latitude (South) 139.983881 32.949759 139.983881 32.677172 139.866395 32.659921 Then northerly to the south eastern corner of the southern severance of Pastoral Lease PE002255 (Winnininnie); then northerly along the eastern boundary of that pastoral lease to the north western corner of Pastoral Lease PE002213 (Oulnina); then extending along the prolongation northerly of the western boundary of that pastoral lease to intersect the southern boundary of the Barrier Highway road corridor, also being a point on the southern boundary of Native Title Determination SAD6001/1998, SAD147/2010, SAD417/2015 Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim (SCD2018/002); then generally north easterly and generally northerly along the southern and eastern boundaries of that native title determination to a point at Latitude 31.476869° South, then north easterly back to the commencement point.
SCHEDULE 2
MAPSPart A: Map of the External Boundaries of the Determination Area and the boundary between the Native Title Land and the Negative Determination Area
SCHEDULE 2
MAPS
Part B: Maps depicting Native Title LandSCHEDULE 3
Land and waters where native title exists (Native Title Land)Note: Please refer to maps provided in Schedule 2 Part B for further detail where a portion of a parcel is indicated.
| DCDBID | Hundred | Title Reference | Native Title Status | Native Title Status - Portion Remainder |
| F250191A102 (portion) | OH(CURNAMONA) | CL6160/319 PE002216 | NT Extinguished | NT Exists |
| F250191A102 (portion) | OH(CURNAMONA) | CL6160/319 PE002216 | NT Exists | NT Extinguished |
| F250504A119 (portion) | OH(CURNAMONA) | CL6164/289 PE002371 | NT Extinguished | NT Exists |
| F250504A119 (portion) | OH(CURNAMONA) | CL6164/289 PE002371 | NT Exists | NT Extinguished |
| F251775A42 (portion) | OH(CURNAMONA) | CL6182/777 PE002361 | NT Extinguished | NT Exists |
| F251775A42 (portion) | OH(CURNAMONA) | CL6182/777 PE002361 | NT Exists | NT Extinguished |
| H834800B1121 | OH(CURNAMONA) | CL6162/839 PE002278 | NT Exists | |
| H834800B892 | OH(CURNAMONA) | CL6179/286 PE002303 | NT Exists | |
| H834800B979 | OH(CURNAMONA) | CL6179/994 PE002279 | NT Exists | |
| H834800B984 | OH(CURNAMONA) | CL6181/747 PE002360 | NT Exists | |
| D30328A2002 (portion) | OH(OLARY) | CL6160/604 PE002263 | NT Extinguished | NT Exists |
| D30328A2002 (portion) | OH(OLARY) | CL6160/604 PE002263 | NT Exists | NT Extinguished |
| D30328A2003 (portion) | OH(OLARY) | CL6200/875 PE002465 | NT Extinguished | NT Exists |
| D30328A2003 (portion) | OH(OLARY) | CL6200/875 PE002465 | NT Exists | NT Extinguished |
| D34040A100 | OH(OLARY) | CL6186/330 PE002525 | NT Exists | |
| D34040A102 | OH(OLARY) | CR5750/442 | NT Exists | |
| D34040Q110 | OH(OLARY) | CL6186/330 PE002525 | NT Exists | |
| D34040Q111 | OH(OLARY) | CL6186/330 PE002525 | NT Exists | |
| D34040Q112 | OH(OLARY) | CL6186/330 PE002525 | NT Exists | |
| F252584A125 | OH(OLARY) | CL6194/510 PE002217 | NT Exists | |
| F36714A100 | OH(OLARY) | CR5302/977 | NT Exists | |
| F36714A102 | OH(OLARY) | CR5302/973 | NT Exists | |
| F36714A103 | OH(OLARY) | CR5302/974 | NT Exists | |
| F36714A109 | OH(OLARY) | CR5304/85 | NT Exists | |
| F36714A110 | OH(OLARY) | CR5304/86 | NT Exists | |
| F36714A112 | OH(OLARY) | CL6174/60 PE002206 | NT Exists | |
| F36714A72 | OH(OLARY) | CR5302/972 | NT Exists | |
| F36714A94 | OH(OLARY) | CR5302/977 | NT Exists | |
| F36714A96 | OH(OLARY) | CR5302/977 | NT Exists | |
| F36714A97 | OH(OLARY) | CR5302/977 | NT Exists | |
| H835400B1145 (portion) | OH(OLARY) | CL6179/983 PE002354 | NT Extinguished | NT Exists |
| H835400B1145 (portion) | OH(OLARY) | CL6179/983 PE002354 | NT Exists | NT Extinguished |
| H835400B1149 | OH(OLARY) | CL6174/66 PE002367 | NT Exists | |
| H835400B1153 (portion) | OH(OLARY) | CL1298/29 PE002362 | NT Extinguished | NT Exists |
| H835400B1153 (portion) | OH(OLARY) | CL1298/29 PE002362 | NT Exists | NT Extinguished |
| H835400B1192 (portion) | OH(OLARY) | CL6209/679 PE002436 | NT Extinguished | NT Exists |
| H835400B1192 (portion) | OH(OLARY) | CL6209/679 PE002436 | NT Exists | NT Extinguished |
| H835400B1243 | OH(OLARY) | CL6172/480 PE002198 | NT Exists | |
| H835400B650 | OH(OLARY) | CL6207/261 PE002234 | NT Exists | |
| H835400B655 (portion) | OH(OLARY) | CL6171/861 PE002236 | NT Extinguished | NT Exists |
| H835400B655 (portion) | OH(OLARY) | CL6171/861 PE002236 | NT Exists | NT Extinguished |
| H835400B899 | OH(OLARY) | CL6209/733 PE002223 | NT Exists | |
| H835400B912 (portion) | OH(OLARY) | CL6184/316 PE002537 | NT Extinguished | NT Exists |
| H835400B912 (portion) | OH(OLARY) | CL6184/316 PE002537 | NT Exists | NT Extinguished |
| H835400B932 | OH(OLARY) | CL6209/714 PE002233 | NT Exists | |
| H835400B960 | OH(OLARY) | CL6209/815 PE002213 | NT Exists | |
| H835400B961 (portion) | OH(OLARY) | CL6209/248 PE002214 | NT Extinguished | NT Exists |
| H835400B961 (portion) | OH(OLARY) | CL6209/248 PE002214 | NT Exists | NT Extinguished |
| H835400B962 | OH(OLARY) | CL6207/261 PE002234 | NT Exists | |
| H835400B980 | OH(OLARY) | CL6209/728 PE002222 | NT Exists | |
| H835400B981 | OH(OLARY) | CL6187/48 PE002409 | NT Exists | |
| H835400B994 | OH(OLARY) | CL6184/461 PE002538 | NT Exists | |
| H835400S1118 | OH(OLARY) | CR5764/622 | NT Exists | |
| H835400S1119 | OH(OLARY) | CR5759/733 | NT Exists | |
| H835400S1120 | OH(OLARY) | CR5759/733 | NT Exists | |
| H835400S1121 | OH(OLARY) | CR5769/173 | NT Exists | |
| H835400S1122 | OH(OLARY) | CR5769/174 | NT Exists | |
| H835400S1123 | OH(OLARY) | CR5769/175 | NT Exists | |
| H835400S1124 | OH(OLARY) | CR5769/176 | NT Exists | |
| H835400S1125 | OH(OLARY) | CR5769/177 | NT Exists | |
| H835400S1126 | OH(OLARY) | CR5769/178 | NT Exists | |
| H835400S1127 | OH(OLARY) | CR5769/179 | NT Exists | |
| H835400S1128 | OH(OLARY) | CR5769/180 | NT Exists | |
| H835400S1132 | OH(OLARY) | CR5764/625 | NT Exists | |
| H835400S1135 | OH(OLARY) | CR5759/755 | NT Exists | |
| H835400S1282 | OH(OLARY) | CR5339/268 | NT Exists | |
| H835400S1415 | OH(OLARY) | CR5748/5 | NT Exists | |
| H835400S1416 | OH(OLARY) | CR5748/6 | NT Exists | |
| H835400S1471 | OH(OLARY) | CR5750/445 | NT Exists | |
| H835400S1490 | OH(OLARY) | CR5764/626 | NT Exists | |
| H835400S9 | OH(OLARY) | CR5757/312 | NT Exists | |
| T835401A111 | OH(OLARY) | CR5764/628 | NT Exists | |
| T835401A112 | OH(OLARY) | CR5764/629 | NT Exists | |
| T835401A125 | OH(OLARY) | CR5764/630 | NT Exists | |
| T835401A129 | OH(OLARY) | CR5769/186 | NT Exists | |
| T835401A141 | OH(OLARY) | CR5769/187 | NT Exists | |
| T835401A143 | OH(OLARY) | CR5769/188 | NT Exists | |
| T835401A145 | OH(OLARY) | CR5769/189 | NT Exists | |
| T835401A147 | OH(OLARY) | CR5769/190 | NT Exists | |
| T835401A149 | OH(OLARY) | CR5769/191 | NT Exists | |
| T835401A151 | OH(OLARY) | CR5769/192 | NT Exists | |
| T835401A153 | OH(OLARY) | CR5769/193 | NT Exists | |
| T835401A154 | OH(OLARY) | CR5769/194 | NT Exists | |
| T835401A155 | OH(OLARY) | CR5769/195 | NT Exists | |
| T835401A156 | OH(OLARY) | CR5769/196 | NT Exists | |
| T835401A157 | OH(OLARY) | CR5769/197 | NT Exists | |
| T835401A158 | OH(OLARY) | CR5769/198 | NT Exists | |
| T835401A159 | OH(OLARY) | CR5769/199 | NT Exists | |
| T835401A161 | OH(OLARY) | CR5769/200 | NT Exists | |
| T835401A171 | OH(OLARY) | CR5769/201 | NT Exists | |
| T835401A173 | OH(OLARY) | CR5769/202 | NT Exists | |
| T835401A25 | OH(OLARY) | CR5764/627 | NT Exists | |
| T835401A27 | OH(OLARY) | CR5769/182 | NT Exists | |
| T835401A55 | OH(OLARY) | CR5754/401 | NT Exists | |
| T835401A74 | OH(OLARY) | CR5769/183 | NT Exists | |
| T835401A78 | OH(OLARY) | CR5769/184 | NT Exists | |
| T835401A86 | OH(OLARY) | CR5769/185 | NT Exists | |
| T835401A95 | OH(OLARY) | CR5754/401 | NT Exists | |
| T835401A96 | OH(OLARY) | CR5754/401 | NT Exists | |
| T835401A97 | OH(OLARY) | CR5754/401 | NT Exists | |
| T835401A98 | OH(OLARY) | CR5754/401 | NT Exists | |
| T835401A99 | OH(OLARY) | CR5754/401 | NT Exists | |
| T835405A1 | OH(OLARY) | CR5764/638 | NT Exists | |
| T835405A10 | OH(OLARY) | CR5748/14 | NT Exists | |
| T835405A11 | OH(OLARY) | CR5748/15 | NT Exists | |
| T835405A12 | OH(OLARY) | CR5748/16 | NT Exists | |
| T835405A13 | OH(OLARY) | CR5748/17 | NT Exists | |
| T835405A14 | OH(OLARY) | CR5748/18 | NT Exists | |
| T835405A16 | OH(OLARY) | CR5748/19 | NT Exists | |
| T835405A17 | OH(OLARY) | CR5748/20 | NT Exists | |
| T835405A18 | OH(OLARY) | CR5764/642 | NT Exists | |
| T835405A19 | OH(OLARY) | CR5764/643 | NT Exists | |
| T835405A2 | OH(OLARY) | CR5764/639 | NT Exists | |
| T835405A22 | OH(OLARY) | CR5748/21 | NT Exists | |
| T835405A23 | OH(OLARY) | CR5748/22 | NT Exists | |
| T835405A25 | OH(OLARY) | CR5748/23 | NT Exists | |
| T835405A26 | OH(OLARY) | CR5748/24 | NT Exists | |
| T835405A27 | OH(OLARY) | CR5748/25 | NT Exists | |
| T835405A28 | OH(OLARY) | CR5748/26 | NT Exists | |
| T835405A29 | OH(OLARY) | CR5748/27 | NT Exists | |
| T835405A3 | OH(OLARY) | CR5748/9 | NT Exists | |
| T835405A32 | OH(OLARY) | CR5748/28 | NT Exists | |
| T835405A33 | OH(OLARY) | CR5748/29 | NT Exists | |
| T835405A34 | OH(OLARY) | CR5748/30 | NT Exists | |
| T835405A35 | OH(OLARY) | CR5748/31 | NT Exists | |
| T835405A36 | OH(OLARY) | CR5748/32 | NT Exists | |
| T835405A37 | OH(OLARY) | CR5748/33 | NT Exists | |
| T835405A38 | OH(OLARY) | CR5748/34 | NT Exists | |
| T835405A39 | OH(OLARY) | CR5748/35 | NT Exists | |
| T835405A4 | OH(OLARY) | CR5748/10 | NT Exists | |
| T835405A40 | OH(OLARY) | CR5748/36 | NT Exists | |
| T835405A41 | OH(OLARY) | CR5748/37 | NT Exists | |
| T835405A42 | OH(OLARY) | CR5748/38 | NT Exists | |
| T835405A43 | OH(OLARY) | CR5748/39 | NT Exists | |
| T835405A44 | OH(OLARY) | CR5748/40 | NT Exists | |
| T835405A45 | OH(OLARY) | CR5748/41 | NT Exists | |
| T835405A46 | OH(OLARY) | CR5748/42 | NT Exists | |
| T835405A47 | OH(OLARY) | CR5748/43 | NT Exists | |
| T835405A48 | OH(OLARY) | CR5748/44 | NT Exists | |
| T835405A49 | OH(OLARY) | CR5748/45 | NT Exists | |
| T835405A5 | OH(OLARY) | CR5748/11 | NT Exists | |
| T835405A50 | OH(OLARY) | CR5748/46 | NT Exists | |
| T835405A51 | OH(OLARY) | CR5748/47 | NT Exists | |
| T835405A52 | OH(OLARY) | CR5748/48 | NT Exists | |
| T835405A54 | OH(OLARY) | CR5748/49 | NT Exists | |
| T835405A55 | OH(OLARY) | CR5748/50 | NT Exists | |
| T835405A56 | OH(OLARY) | CR5748/51 | NT Exists | |
| T835405A57 | OH(OLARY) | CR5748/52 | NT Exists | |
| T835405A58 | OH(OLARY) | CR5748/53 | NT Exists | |
| T835405A59 | OH(OLARY) | CR5748/54 | NT Exists | |
| T835405A6 | OH(OLARY) | CR5748/12 | NT Exists | |
| T835405A60 | OH(OLARY) | CR5748/55 | NT Exists | |
| T835405A61 | OH(OLARY) | CR5748/56 | NT Exists | |
| T835405A62 | OH(OLARY) | CR5748/57 | NT Exists | |
| T835405A63 | OH(OLARY) | CR5748/58 | NT Exists | |
| T835405A64 | OH(OLARY) | CR5748/59 | NT Exists | |
| T835405A65 | OH(OLARY) | CR5748/60 | NT Exists | |
| T835405A66 | OH(OLARY) | CR5748/61 | NT Exists | |
| T835405A67 | OH(OLARY) | CR5748/62 | NT Exists | |
| T835405A68 | OH(OLARY) | CR5748/63 | NT Exists | |
| T835405A69 | OH(OLARY) | CR5748/64 | NT Exists | |
| T835405A7 | OH(OLARY) | CR5748/13 | NT Exists | |
| T835405A70 | OH(OLARY) | CR5748/65 | NT Exists | |
| T835405A71 | OH(OLARY) | CR5748/66 | NT Exists | |
| T835405A72 | OH(OLARY) | CR5748/67 | NT Exists | |
| T835405A73 | OH(OLARY) | CR5748/68 | NT Exists | |
| T835405A74 | OH(OLARY) | CR5748/69 | NT Exists | |
| T835405A75 | OH(OLARY) | CR5748/70 | NT Exists | |
| T835405A76 | OH(OLARY) | CR5748/71 | NT Exists | |
| T835405A8 | OH(OLARY) | CR5764/640 | NT Exists | |
| T835405A9 | OH(OLARY) | CR5764/641 | NT Exists |
SCHEDULE 4
Areas where native title does not existNote: Please refer to maps provided in Schedule 2 Part B for further detail where a portion of a parcel is indicated.
1. Native title rights and interests do not exist in:
(a) minerals as defined in section 6 of the Mining Act 1971 (SA);
(b)petroleum, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA);
(c)a naturally occurring underground accumulation of a regulated substance as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth;
(d)a natural reservoir, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth;
(e)geothermal energy, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA) the source of which is below a depth of 100 metres from the surface of the earth.
For the purposes of this item 1 and the avoidance of doubt:
(f)a geological structure (in whole or in part) on or at the earth’s surface or a natural cavity which can be accessed or entered by a person through a natural opening in the earths surface, is not a natural reservoir;
(g)thermal energy contained in a hot or natural spring is not geothermal energy as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA);
(h)the absence from this Order of any reference to a natural reservoir or a naturally occurring accumulation of a regulated substance, as those terms are defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), above a depth 100 metres below the surface of the earth or geothermal energy the source of which is above a depth of 100 metres below the surface of the earth is not, of itself, to be taken as an indication of the existence or otherwise of native title rights or interests in such natural reservoir, naturally occurring accumulation of a regulated substance or geothermal energy.
2.Native title rights and interests have been extinguished in the areas of Native Title Land covered by Public Works (including the land and waters defined in section 251D of the NTA) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date.
3.Public Works constructed, established or situated after 23 December 1996 on Native Title Land have had such effect as has resulted from Part 2, Division 3, of the NTA.
4.Native title rights and interests have been extinguished over all roads which have been delineated in a public map pursuant to section 5(d)(ii) of the Crown Lands Act 1929 (SA) or section 70(3) or (4) of the Crown Land Management Act 2009 (SA) or which have otherwise been validly established pursuant to South Australian statute or common law.
5.Native title rights and interests do not exist over any land and waters within the Determination Area other than those parcels listed at Schedules 3 and 4 and do not exist in any land or waters beyond 50 metres seaward of the Lowest Astronomical Tide as defined by Geoscience Australia Coastline Information Capture Program Australia 2016.
6.For ease of reference (but without limiting the above), native title does not exist in the parcels listed below:
| DCDBID | Hundred | Title Reference | Native Title Status | Native Title Status - Portion Remainder |
| F250191A102 (portion) | OH(CURNAMONA) | CL6160/319 PE002216 | NT Extinguished | NT Exists |
| F250504A119 (portion) | OH(CURNAMONA) | CL6164/289 PE002371 | NT Extinguished | NT Exists |
| F251775A42 (portion) | OH(CURNAMONA) | CL6182/777 PE002361 | NT Extinguished | NT Exists |
| D30328A2002 (portion) | OH(OLARY) | CL6160/604 PE002263 | NT Extinguished | NT Exists |
| D30328A2003 (portion) | OH(OLARY) | CL6200/875 PE002465 | NT Extinguished | NT Exists |
| D30328A2004 | OH(OLARY) | CT6007/186 | NT Extinguished | |
| D34040A106 | OH(OLARY) | CT5316/802 | NT Extinguished | |
| D34040A108 | OH(OLARY) | CR5752/722 | NT Extinguished | |
| D34040A116 | OH(OLARY) | CL6186/330 PE002525 | NT Extinguished | |
| D40684A200 | OH(OLARY) | CT5216/748 | NT Extinguished | |
| D40684A201 | OH(OLARY) | CT5216/749 | NT Extinguished | |
| D40684A202 | OH(OLARY) | CT5216/750 | NT Extinguished | |
| D40684A203 | OH(OLARY) | CT5216/751 | NT Extinguished | |
| D40684A204 | OH(OLARY) | CT5216/752 | NT Extinguished | |
| D79224A46 | OH(OLARY) | CT6057/512 | NT Extinguished | |
| D79224Q43 | OH(OLARY) | CT6057/511 | NT Extinguished | |
| D79224Q45 | OH(OLARY) | CT6057/511 | NT Extinguished | |
| D80859A48 | OH(OLARY) | CT6051/694 | NT Extinguished | |
| D80859A49 | OH(OLARY) | CT6051/694 | NT Extinguished | |
| D80859A51 | OH(OLARY) | CT6051/696 | NT Extinguished | |
| D80859A52 | OH(OLARY) | CT6051/696 | NT Extinguished | |
| D80859Q50 | OH(OLARY) | CT6051/695 | NT Extinguished | |
| D80859Q53 | OH(OLARY) | CT6051/695 | NT Extinguished | |
| D80867A50 | OH(OLARY) | CT6221/456 | NT Extinguished | |
| D80867A51 | OH(OLARY) | CT6221/456 | NT Extinguished | |
| D80867A52 | OH(OLARY) | CT6057/136 | NT Extinguished | |
| D80867A53 | OH(OLARY) | CT6221/456 | NT Extinguished | |
| D80867A54 | OH(OLARY) | CT6057/136 | NT Extinguished | |
| F104453A5 | OH(OLARY) | CT5147/23 | NT Extinguished | |
| F104453A6 | OH(OLARY) | CT5147/23 | NT Extinguished | |
| F199216A322 | OH(OLARY) | CT5549/293 | NT Extinguished | |
| F200248A91 | OH(OLARY) | CT5915/297 | NT Extinguished | |
| F200248A92 | OH(OLARY) | CT5915/297 | NT Extinguished | |
| F200248A93 | OH(OLARY) | CT5915/297 | NT Extinguished | |
| F200248A94 | OH(OLARY) | CT5915/296 | NT Extinguished | |
| F200248A95 | OH(OLARY) | CT5915/297 | NT Extinguished | |
| F209349A163 | OH(OLARY) | CT5550/990 | NT Extinguished | |
| F209350A164 | OH(OLARY) | CT5777/512 | NT Extinguished | |
| F209351A165 | OH(OLARY) | CT5783/850 | NT Extinguished | |
| F209352A166 | OH(OLARY) | CT5788/587 | NT Extinguished | |
| F209353A167 | OH(OLARY) | CT5809/523 | NT Extinguished | |
| F209354A168 | OH(OLARY) | CT5782/149 | NT Extinguished | |
| F214599A110 | OH(OLARY) | CT6151/500 | NT Extinguished | |
| F215988A107 | OH(OLARY) | CT5782/876 | NT Extinguished | |
| F218342A5 | OH(OLARY) | CT5843/165 | NT Extinguished | |
| F251052A100 | OH(OLARY) | CL6174/65 PE002398 | NT Extinguished | |
| F251333Q201 | OH(OLARY) | CL6176/449 PE002200 | NT Extinguished | |
| F251689A110 | OH(OLARY) | CL6181/578 PE002224 | NT Extinguished | |
| F251714A112 | OH(OLARY) | CL6183/279 PE002208 | NT Extinguished | |
| F36714A1 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A10 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A101 | OH(OLARY) | CR5302/978 | NT Extinguished | |
| F36714A104 | OH(OLARY) | CR5988/385 | NT Extinguished | |
| F36714A105 | OH(OLARY) | CT6221/456 | NT Extinguished | |
| F36714A107 | OH(OLARY) | CR5774/658 | NT Extinguished | |
| F36714A108 | OH(OLARY) | CT6221/456 | NT Extinguished | |
| F36714A11 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A113 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A114 | OH(OLARY) | CT5885/778 | NT Extinguished | |
| F36714A115 | OH(OLARY) | CR5304/87 | NT Extinguished | |
| F36714A12 | OH(OLARY) | CL6196/846 OP017932 | NT Extinguished | |
| F36714A121 | OH(OLARY) | CR5304/88 | NT Extinguished | |
| F36714A124 | OH(OLARY) | CR5305/763 | NT Extinguished | |
| F36714A13 | OH(OLARY) | CL6196/846 OP017932 | NT Extinguished | |
| F36714A14 | OH(OLARY) | CL6196/846 OP017932 | NT Extinguished | |
| F36714A15 | OH(OLARY) | CR5302/969 | NT Extinguished | |
| F36714A16 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A17 | OH(OLARY) | CR5302/976 | NT Extinguished | |
| F36714A18 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A19 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A2 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A20 | OH(OLARY) | CR5774/658 | NT Extinguished | |
| F36714A21 | OH(OLARY) | CR5302/970 | NT Extinguished | |
| F36714A22 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A24 | OH(OLARY) | CL6211/142 OP010127 | NT Extinguished | |
| F36714A25 | OH(OLARY) | CL6211/142 OP010127 | NT Extinguished | |
| F36714A26 | OH(OLARY) | CL6211/142 OP010127 | NT Extinguished | |
| F36714A27 | OH(OLARY) | CL6211/142 OP010127 | NT Extinguished | |
| F36714A29 | OH(OLARY) | CL6211/142 OP010127 | NT Extinguished | |
| F36714A3 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A34 | OH(OLARY) | CL6174/60 PE002206 | NT Extinguished | |
| F36714A35 | OH(OLARY) | CL6174/60 PE002206 | NT Extinguished | |
| F36714A36 | OH(OLARY) | CL6174/60 PE002206 | NT Extinguished | |
| F36714A37 | OH(OLARY) | CL6174/60 PE002206 | NT Extinguished | |
| F36714A38 | OH(OLARY) | CL6174/61 OP005675 | NT Extinguished | |
| F36714A39 | OH(OLARY) | CL6174/61 OP005675 | NT Extinguished | |
| F36714A4 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A40 | OH(OLARY) | CL6174/61 OP005675 | NT Extinguished | |
| F36714A41 | OH(OLARY) | CL6174/60 PE002206 | NT Extinguished | |
| F36714A42 | OH(OLARY) | CL6174/61 OP005675 | NT Extinguished | |
| F36714A43 | OH(OLARY) | CL6174/61 OP005675 | NT Extinguished | |
| F36714A44 | OH(OLARY) | CL6174/61 OP005675 | NT Extinguished | |
| F36714A45 | OH(OLARY) | CL6174/61 OP005675 | NT Extinguished | |
| F36714A46 | OH(OLARY) | CL6174/61 OP005675 | NT Extinguished | |
| F36714A47 | OH(OLARY) | CL6174/61 OP005675 | NT Extinguished | |
| F36714A48 | OH(OLARY) | CL6174/62 OP007125 | NT Extinguished | |
| F36714A49 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A5 | OH(OLARY) | CL6196/846 OP017932 | NT Extinguished | |
| F36714A50 | OH(OLARY) | CL6174/62 OP007125 | NT Extinguished | |
| F36714A51 | OH(OLARY) | CL6174/62 OP007125 | NT Extinguished | |
| F36714A52 | OH(OLARY) | CL6174/64 OP004954 | NT Extinguished | |
| F36714A53 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A55 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A6 | OH(OLARY) | CL6196/846 OP017932 | NT Extinguished | |
| F36714A60 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A61 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A65 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A66 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A67 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A68 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A69 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A7 | OH(OLARY) | CL6196/846 OP017932 | NT Extinguished | |
| F36714A71 | OH(OLARY) | CR5302/971 | NT Extinguished | |
| F36714A78 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714A8 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A9 | OH(OLARY) | CR5302/975 | NT Extinguished | |
| F36714A92 | OH(OLARY) | CL6210/752 OP004558 | NT Extinguished | |
| F36714A98 | OH(OLARY) | CT6221/456 | NT Extinguished | |
| F36714Q116 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714Q117 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714Q118 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714Q119 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714Q120 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714Q122 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F36714Q123 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| F37353A6 | OH(OLARY) | CL6186/330 PE002525 | NT Extinguished | |
| F37353A7 | OH(OLARY) | CL6186/330 PE002525 | NT Extinguished | |
| H835400B1145 (portion) | OH(OLARY) | CL6179/983 PE002354 | NT Extinguished | NT Exists |
| H835400B1153 (portion) | OH(OLARY) | CL1298/29 PE002362 | NT Extinguished | NT Exists |
| H835400B1192 (portion) | OH(OLARY) | CL6209/679 PE002436 | NT Extinguished | NT Exists |
| H835400B655 (portion) | OH(OLARY) | CL6171/861 PE002236 | NT Extinguished | NT Exists |
| H835400B912 (portion) | OH(OLARY) | CL6184/316 PE002537 | NT Extinguished | NT Exists |
| H835400B920 | OH(OLARY) | CL6159/957 PE002485 | NT Extinguished | |
| H835400B961 (portion) | OH(OLARY) | CL6209/248 PE002214 | NT Extinguished | NT Exists |
| H835400S1112 | OH(OLARY) | CR5774/649 | NT Extinguished | |
| H835400S1113 | OH(OLARY) | CR5764/621 | NT Extinguished | |
| H835400S1114 | OH(OLARY) | CR5764/621 | NT Extinguished | |
| H835400S1131 | OH(OLARY) | CR5764/624 | NT Extinguished | |
| H835400S1139 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| H835400S1140 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| H835400S1141 | OH(OLARY) | CL6174/63 OP004539 | NT Extinguished | |
| H835400S1285 | OH(OLARY) | CR5757/302 | NT Extinguished | |
| H835400S1578 | OH(OLARY) | CT5398/784 | NT Extinguished | |
| H835400S1579 | OH(OLARY) | CT5216/753 | NT Extinguished | |
| H835400S1580 | OH(OLARY) | CT6100/910 | NT Extinguished | |
| H835400S1581 | OH(OLARY) | CT5216/754 | NT Extinguished | |
| H835400S1582 | OH(OLARY) | CT5398/863 | NT Extinguished | |
| H835400S1589 | OH(OLARY) | CR5769/181 | NT Extinguished | |
| H835400S1594 | OH(OLARY) | CT6007/183 | NT Extinguished | |
| H835400S257 | OH(OLARY) | CR5774/648 | NT Extinguished | |
| H835400S345 | OH(OLARY) | CR5757/301 | NT Extinguished | |
| H835400S394 | OH(OLARY) | CL6200/875 PE002465 | NT Extinguished | |
| H835400S442 | OH(OLARY) | CT5582/841 | NT Extinguished | |
| T835401A1 | OH(OLARY) | CT5835/628 | NT Extinguished | |
| T835401A100 | OH(OLARY) | CT5810/987 | NT Extinguished | |
| T835401A101 | OH(OLARY) | CT5476/282 | NT Extinguished | |
| T835401A102 | OH(OLARY) | CT5871/398 | NT Extinguished | |
| T835401A103 | OH(OLARY) | CT5846/201 | NT Extinguished | |
| T835401A104 | OH(OLARY) | CT5813/187 | NT Extinguished | |
| T835401A105 | OH(OLARY) | CT5835/392 | NT Extinguished | |
| T835401A106 | OH(OLARY) | CT5826/208 | NT Extinguished | |
| T835401A107 | OH(OLARY) | CT5835/591 | NT Extinguished | |
| T835401A108 | OH(OLARY) | CT5517/414 | NT Extinguished | |
| T835401A109 | OH(OLARY) | CT5846/201 | NT Extinguished | |
| T835401A110 | OH(OLARY) | CT5817/787 | NT Extinguished | |
| T835401A113 | OH(OLARY) | CT5873/952 | NT Extinguished | |
| T835401A114 | OH(OLARY) | CT5813/540 | NT Extinguished | |
| T835401A115 | OH(OLARY) | CT6151/499 | NT Extinguished | |
| T835401A117 | OH(OLARY) | CT5792/790 | NT Extinguished | |
| T835401A118 | OH(OLARY) | CT5786/729 | NT Extinguished | |
| T835401A119 | OH(OLARY) | CT6151/499 | NT Extinguished | |
| T835401A12 | OH(OLARY) | CT5486/793 | NT Extinguished | |
| T835401A120 | OH(OLARY) | CT5813/540 | NT Extinguished | |
| T835401A121 | OH(OLARY) | CT5844/230 | NT Extinguished | |
| T835401A122 | OH(OLARY) | CT5813/540 | NT Extinguished | |
| T835401A123 | OH(OLARY) | CT5563/775 | NT Extinguished | |
| T835401A124 | OH(OLARY) | CT5786/729 | NT Extinguished | |
| T835401A126 | OH(OLARY) | CT5813/538 | NT Extinguished | |
| T835401A127 | OH(OLARY) | CT5566/981 | NT Extinguished | |
| T835401A128 | OH(OLARY) | CT5786/729 | NT Extinguished | |
| T835401A130 | OH(OLARY) | CT5595/305 | NT Extinguished | |
| T835401A131 | OH(OLARY) | CT5807/154 | NT Extinguished | |
| T835401A132 | OH(OLARY) | CT5827/267 | NT Extinguished | |
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REASONS FOR JUDGMENT
RAPER J:
By orders made today, a determination of native title under the Native Title Act 1993 (Cth) (NTA) has been made with respect to an application made on behalf of the Wilyakali people in respect of an area of land and waters in the mid-north-eastern area of South Australia which borders New South Wales.
The parties to this proceeding have reached agreement on the terms of a native title determination (proposed consent determination) for the areas of the land which are the subject of the application (determination area). The determination area is broadly described as approximately 10,343 km2 of land which abuts the south-eastern corner of the Adnyamathanha, Wilyakali, Ngadjuri determination area from about (but not including) Oulnina on the Barrier Highway (which forms the northern boundary of much of the claim).
As a consequence the parties have applied for consent orders and a consent determination of native title to be made under s 87 of the NTA.
These reasons explain why I make the determination in the form sought by the parties.
The application
On 8 February 2012, the applicants first lodged “Native Title Determination Application Claimant Application”, now SAD 89 of 2022 (formerly SAD 33 of 2012). This application covered extensive areas of land within South Australia on the western side of the South Australian/New South Wales border, and the external boundary of the claim area was initially described by the applicants as follows:
The South Australia/New South Wales border between GDA 94 coordinates 31°15’000 S / 141°00’000 E and 32°46’000 S/ 141°00’000 E determines the eastern boundary of the Wilyakali native title claim area. From its northeastern-most point at 31°15’000 S / 141°00’000 E the boundary moves in a south-westerly direction to approximately 31°30’000 S / 140°15’000 E where it meets the boundary of the Adnyamathanha People No. l Native Title Claim [SAD6001 /1998] at the south-eastern corner of Benagerie Station. It then follows the Adnyamathanha native title claim boundary in a south-easterly direction taking in the north-eastern corner of Yarramba Station, continuing south-easterly down to the Wompinie Homestead turn-off at approximately 32°00’000 S / 140°45’500 E where it veers south-westerly to approximately 32°07’600 S / 140°45’000 E at Mingary on the Barrier Highway. The boundary then continues along the Barrier Highway in a south-westerly direction to include the townships of Olary, Mannahill and Yunta to approximately 32°35’000 S / 139°33’000 E where it turns back in a south-easterly direction along the Yunta Creek and down to approximately 32°58’000 s / 140°00’000 E. The boundary then moves in an easterly direction to meet the southeastern-most corner of the claim area at the South Australia/New South Wales border at approximately 32°46’000 S / 141°00’000 E.
After filing this application, other applications were made. On 14 December 2018, the area covering the whole area of Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim (SAD 6001 of 1998) was determined by consent: Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993.
The area which was the subject matter of the Coulthard determination comprised a combination of the undetermined Adnyamathanha No 1 Native Title Determination Application (SAD 6001 of 1998), the whole of the Ngadjuri Native Title Determination Application (SAD 147 of 2010) and the whole of the Wilyakali No 2 Native Title Determination Application (SAD 417 of 2015).
At the time this claim was filed, it partially overlapped with the claim made by the Ngadjuri people the subject of proceedings in Branson on behalf of Ngadjuri Nation #2 Native Claim v State of South Australia [2023] FCA 715 (SAD 84 of 2022, formerly SAD 304 of 2011) (Ngadjuri Nation No 2 claim). Following negotiations between the Wilyakali and Ngadjuri people, it was agreed that their respective claims would be amended so as to eliminate any overlap between them.
After these developments, the application was amended and filed on 15 March 2021. The intention of this amendment was, and it did in fact, resolve any overlap by forming a common boundary between this application and the remainder of the former overlapping Ngadjuri Nation No 2 claim.
The determination area
The area which is the subject of the determination is as described in the written description given to it in Schedule 1. By general description it is a parcel of land in an inverted blocked L-shape which covers appropriately 10,343 km2 and abuts the south-eastern corner of the Adnyamathanha, Wiliyakali, Ngadjuri determination area from about (but not including) Oulnina on the Barrier Highway (which forms the northern boundary of much of the claim). It extends to the SA/NSW border and includes the whole of the following pastoral leases: Aroona West, Benda, Bundera, Canewood, Devonborough Downs, D’Lorah Downs, Eringa Park, Lake Dismal, Maldorky, Mundi Mundi, Pine Creek, Radium Hill, Taltabooka North, Tepco, Tikalina, Wadnaminga, Wawirra, and Wiawera; and portions of Bindarrah, Boolcoomatta, Kalkaroo, Manunda, Mulyungarie, Mutooroo, Netley Gap, Oakbank, Oulnina Park, Quandong, Tiverton, Wompinie and Yarumba.
The expansive area is broadly defined as Australian arid zone and includes dry, undulating hilly areas, low scrub land dominated by bluebush and salt bush, creeks and dams.
European settlement of the claim areas
By the mid to late 19th century, the determination area had been settled and comprised the North-East Pastoral District. A number of historical events at this time contextualised the movement of Wilyakali ancestors away from their traditional lands in South Australia to Poolamacca in the late 19th century (although noting this movement was consistent with the Wilyakali peoples’ traditional movement patterns). The historical events included the erection of fencing around the various stations which restricted the freedom of movement of the Wilyakali people. The fencing appears to have been, in part, a response to the cumulative effects of the devastating drought in the late 1880s–1890s, soil erosion and introduced species.
As anthropologist, Ms Sandra Jarvis, opined in her 2020 expert report:
Rabbits were well established in the region by the late 1800s subsequently reaching plague proportions. Drought and financial depression, combined with widespread soil erosion across the district caused by the uncontained grazing pressure of rabbits, resulted in eradication methods to control them and the increased presence of dingoes. In addition, the change from shepherding to fencing sheep into paddocks made them vulnerable to dingo predation. It was for this reason pastoralists quickly discovered that the only successful method of combating dingoes was the erection of substantial high netting fencing fences, poisoning and trapping.
The destruction of the land is apparent from the observations made in the Adelaide Observer, on 17 July 1897, when describing the area around Oulnina Station (the western tip of the inverted L-shape of the determination area):
Where there is not a skerrick remaining, where the ground is as bare as a macadamized road, it is doubtful whether the bush will ever recover. …At Oulnina some time ago Mr A Treloar [noted] …it would take many years to get the country back to its former state. …The fallacy of the idea that the 1888 leases are fully improved has long since demonstrated. …When Waukaringa was a thriving mining centre the several hundred inhabitants had the right to cut the scrub within a distance of fifteen miles of the town. This naturally led to the destruction of a large number of valuable trees in this particular locality. Thousands of valuable shrubs and trees owe their destruction to the rabbits.
…Outalpa is divided into 18 paddocks. …to make proper use of this country feed tanks and further subdivision are necessary. …Mr Kent [of Outalpa] said the rabbits which ate them out 3 years ago – they were present in thousands even at the beginning of the year – had nearly all perished owing to the drought. …Most of the rodents which survive the drought manage to do so by making back into the rough hills where they find the necessaries of life. But when spring decks the plain they venture forth again and renew their work of devastation. …Rabbits are migratory and it is very disheartening for one man, after eradicating the vermin as far as possible, to find millions of rabbits …sweeping across his country and eating all before them.
[Dog eradication; dog scalpers and ‘expert dog catchers’]
‘The dogs are terribly bad now’, so Mr Kent told us. …At the beginning of last summer 40,000 [rabbits] were killed in one month at one dam at Mutooroo. …Mr Kent of Outalpa expressed the opinion ‘…I give a man as much strychnine as he can take out and as many traps as he can look after, and although he represents that he is doing his utmost to suppress the dogs, they are still running in the paddock.
Evidence filed supportive of the application
The applicants filed their own evidence as well as expert anthropological evidence.
The lay evidence comprised the following affidavits from the members of the claim group:
(a)The affidavit of Mr Glen Stanley O’Donnell dated 20 October 2011.
(b)The affidavit of Ms Dulcie O’Donnell dated 20 October 2011.
(c)The affidavit of Ms Maureen O’Donnell dated 20 October 2011.
The only expert anthropological report that was filed was that of Ms Sandra Jarvis dated 17 December 2020, titled “Response to Anthropology Report for the Wilyakali No.1 Native Title Claim”. However, in the parties’ submissions, they submitted that the applicants also relied upon a report of Ms Jarvis dated October 2020 (which was not filed with the Court), and that Ms Jarvis provided two additional written responses to questions raised by the State’s expert assessor. The State commissioned Mr Kim McCaul to assess the expert reports provided by the applicants.
It is apparent that the State has given careful consideration to the material provided by the applicants, sought further information from the applicants over time and also considered the expert evidence which no doubt contributed to the negotiation of and agreement with respect to native title rights and interests in relevant parts of the determination area. It also appears to have led to the negotiation of an indigenous land use agreement (the Wilyakali Settlement ILUA).
Whether the determination is within power
Specific consideration of the principles to be applied when determining whether the orders sought are within the power of the Court was given by Mortimer J (as her Honour then was) in Freddie v Northern Territory [2017] FCA 867 at [15]–[24], which are set out as follows:
15In order to be satisfied that the orders sought are within the power of the Court, consideration must be given to other restrictions or requirements in the Native Title Act. For example, the area covered by the orders must not overlap with any other application for determination of native title (s 67(1)); similarly, the area covered by the orders cannot have been the subject of a previously approved determination of native title (s 68). Further, the orders sought will only be within power if they set out the details of the matters required by s 225 (see s 94A) and if they concern rights and interests which the Australian common law is able to recognise (s 223(1)(c)).
16The Court’s function under s 87 is quite different from its function in a contested application for a determination of native title, and this difference has been confirmed in many authorities of this Court: see Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36] (North J), which has been endorsed many times; and see for example Thudgari People v State of Western Australia [2009] FCA 1334 at [25] (Barker J); Goonack v State of Western Australia [2011] FCA 516 at [25]-[26] (Gilmour J), in relation to s 87A; Wurrunmurra on behalf of the Bunuba People v State of Western Australia [2015] FCA 1480 at [27] (Barker J). In Lander v State of South Australia [2012] FCA 427 at [11], and by reference to Lovett, Mansfield J emphasised that the focus of the Court under s 87 is on the making of the agreement by the parties.
17The Court’s function under s 87, and its discretion, must also be understood in the context of the Native Title Act’s emphasis on negotiation and alternative dispute resolution, whereby one particular object of the Native Title Act is to resolve claims to native title without judicial determination in a contested proceeding: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [28] (Emmett J). I note in this context that the Preamble to the Act envisages that:
A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
(Emphasis added.)
18The concept of “appropriateness” in s 87(1A) also recognises that the determination made by the Court is one made as against the whole world, and not just between the parties to the proceeding: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] (French J). The rights conferred are enduring legal rights, proprietary in nature and in recognising them through a determination, the Court must be conscious of their character. The nature of the rights informs considerations such as the clarity of the terms of the determination (as to the claim area, the nature of the native title rights and interests and the manner of affectation on other proprietary interests); the need for appropriate notification and then the free and informed consent of all parties; and finally the State’s agreement that there is a credible and rational basis for the determination proposed.
19The discretionary evaluation of whether orders are appropriate is a wide one, but the Court must focus on the individual circumstances of each proposed determination: see Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487 at [18] (North J).
20I accept it is also important to see the exercise of the judicial power in s 87 in the context of the Court’s jurisdiction as a whole, and its foundational legislation, the Federal Court of Australia Act 1976 (Cth), and in particular s 37M and s 37N of that Act. In exercising the discretion under s 87, the Court should pursue the objectives there set out, of promoting “just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible”. See the observations of Jagot J in Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 at [12]; also her Honour’s similar observations in Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851 at [1] and [9] and Yaegl People #1 v Attorney General of New South Wales [2015] FCA 647 at [9]-[10].
21Since the determination made by the Court must include the matters set out in s 225 of the Native Title Act, there must be some probative material against which the Court can assess whether those matters can be stated in a determination. The principal source will be the parties’ agreed position put to the Court in the proposed orders and determination setting out the matters required by s 225, together with an agreed statement of facts filed pursuant to s 87(8), joint submissions and any supporting documents such as an expert report. That is not to suggest an expert report is always necessary, but if one has been produced and it forms part of the material upon which the State (or Territory) has relied in agreeing to a determination, it is likely to be appropriate for such a report to be before the Court. Such reports, if filed and relied on by the Court, provide an opportunity for the Court to record at least some of the material establishing connection to the claim area in a publicly accessible form. However there is no need to provide the Court with all of the evidence of the primary facts substantiating native title. Again, that is because the premise of s 87, and the Native Title Act’s emphasis on conciliation, is that the parties have freely and on an informed basis come to an agreement: see Hughes (on behalf of the Eastern Guruma People) v State of Western Australia [2007] FCA 365 (at [9]) (Bennett J), cited with approval in Peterson v State of Western Australia [2013] FCA 518 at [22] (McKerracher J). See also Ward v State of Western Australia [2006] FCA 1848 at [8].
22In Brown v Northern Territory of Australia [2015] FCA 1268 at [23], Mansfield J described the task to be undertaken by the Court in the following way:
The Court is not required to embark upon an inquiry as to the merits of the claim to be itself satisfied that the orders are supported and in accordance with law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, the Court will consider evidence for the limited purpose of determining whether the State has made a rational decision and is acting in good faith: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J.
23The State, in particular, comes to an agreement under s 87 only after discharging its public responsibilities to ensure the agreement is in the interests of the community it represents. This must involve, but it is not limited to, satisfaction by the State that there is a sufficient basis to put forward the agreement to the Court as one which is capable of satisfying the requirements of s 225 of the Native Title Act. A s 87 agreement may be reached on behalf of the State (or Territory), and other parties, without the level of proof required in a contested application. Inherent in parties’ agreement to resolve claims by settlement rather than litigation, as in other areas of the law, is a willingness to abide by an outcome without the exhaustive and detailed investigation that accompanies a trial of contested issues of fact and law. The public interest in an outcome of this kind is considerable: see Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [26], Rares J.
24The Court is entitled to rely on the processes established by a State (or Territory) for the assessment of claims to native title and, without abdicating its task of determining that the matters set out in s 225 are present in a particular application, is entitled to proceed on the basis the State (or Territory) has made a reasonable and rational assessment of the material to which it has access in deciding to enter into a s 87 agreement: see, in relation to a similar point with respect to s 223 of the Act, King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 at [21] (Keane CJ).
Section 87 of the NTA permits the Court to make a determination of native title consistent with a written agreement between the parties to a proceeding without holding a hearing if it is satisfied of a number of matters, which include:
(a)whether the notice period under s 66 of the NTA has ended;
(b)that the parties have reached agreement on the terms of order relating to the whole of the proceedings, a part of the proceedings or a matter arising out of the proceedings;
(c)the terms of the agreement have been reduced to writing, signed by and on behalf of the parties and filed with the Court; and
(d)the Court is satisfied that an order in, or consistent, with those orders would be within the power of the Court.
Consideration
I am satisfied that the preconditions to the exercise of the power under s 87 are met.
First, I am satisfied that the notification requirements prescribed by s 66 of the NTA have been met.
The Native Title Registrar was required to undertake a notification process in accordance with s 66 of the NTA (as applicable at the time). As part of this notification process, the Registrar was required to provide a copy of the application to the relevant State Minister (s 66(2)), and to other appropriate representative bodies (s 66(2A)), as well as to give notice to persons or bodies specified under s 66(3)(a), and to notify the public (s 66(3)(d)). The relevant notice for which each of those persons must be informed must include certain statements depending on the nature of the application. In this case, given it is a claimant application, the notice must state that, given there can only be one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Court, in making its determination, to take into account the person’s native title rights and interests in relation to the relevant area (s 66(10)(b)). In addition, a person who wants to become a party to the application must notify the Court in writing within three months of the notification day or, after that time, seek leave from the Court to become a party (s 66(10)(c)).
On 13 June 2012, the Native Title Registrar wrote to the Court and confirmed that the Registrar had given notice containing details of the application to the persons and bodies specified in s 66(3)(a) of the NTA.
The Registrar also confirmed that they had notified the public of the application in accordance with s 66(3)(d) of the NTA. In accordance with s 66(3)(b), the correspondence from the Registrar enclosed a copy of the notice provided to the persons and bodies specified in subs (3)(a), as well as the public notice specified in subs (3)(d). Both notices specified that any person or entity who wished to become a party to the application was required to apply to the Court to become a party by 26 September 2012 (as specified in s 66(10)(c)). In addition, both notices contained the statement specified in s 66(10)(b).
On 8 October 2012, following the closure of the notification period, the Court wrote to the applicants’ then-solicitors providing them with a party list.
Secondly, I am satisfied that the parties have reached agreement on the terms of the order relating to the whole of the proceedings.
I am satisfied that the area covered by the orders does not overlap with the area which is the subject of any other application for determination of native title (s 67(1)) or a previously approved determination of native title (s 68).
I have relied upon the parties’ submission that a thorough tenure assessment has been undertaken in this matter and for the purposes of consent orders. An agreement has been reached by the parties as to the effect on native title of the various tenures granted and acts done in the determination area. The consent orders record all areas over which native title can be recognised, including as a consequence of ss 47A and 47B of the NTA, together with those areas where native title has been extinguished.
The parties have submitted that following the resolution of the overlapping claims, this matter has been resolved by agreement between the parties in accordance with the State of South Australia’s Consent Determination Policy: Consent Determinations in South Australia: A Guide to Preparing Native Title Reports (2004) Crown Solicitor’s Office.
Thirdly, the agreement has been reduced to writing, signed by or on behalf of the parties, and filed with the Court. Signatories include those with interests in the determination area including Telstra Corporation Limited, Amplitel Pty Ltd, Magnetite Mines Ltd, Havilah Resources NL, Mutooroo Pastoral Co Pty Ltd, Worthing Properties Pty Ltd and Lodestone Mines Limited.
The agreement comprises the content of the proposed consent determination as well as a Settlement Indigenous Land Use Agreement (the Wilyakali Settlement ILUA). The State and the applicants agree that the proposed consent determination of native title will take effect upon the registration of the Wilyakali Settlement ILUA under Div 3 of Pt 2 of the NTA.
Under the terms of the ILUA, the State and the applicants have agreed, pursuant to s 24EB, to validate certain acts which may have been done invalidly in the determination area, and provides a process, as an alternative to Div 3 of Pt 2 of the NTA, pursuant to which the State may undertake certain future acts on native title land within the determination area once the ILUA is registered.
The ILUA further provides for compensation and benefits in full and final settlement of the State’s existing compensation liability pursuant to the NTA in relation to the determination area.
The consent determination and the ILUA are dependent on each other in that the determination describes the position after the adjustments agreed in the ILUA come into force upon registration by the National Native Title Tribunal (NNTT). For this reason, it is agreed between the parties that the consent determination as proposed only comes into effect once the ILUA has been successfully registered on the NNTT’s Register of ILUAs.
In the event that the ILUA is not registered within eight months of the date of the making of the determination, the consent determination provides for liberty to apply to the Court.
I will now consider whether the proposed orders and determination are within the power of the Court.
As part of considering whether the Court has jurisdiction to make the orders sought, consideration must be given with respect to the NTA requirements, including whether the Wilyakali people comprise a group in relation to land and waters where the preconditions of s 223 are satisfied, which comprise as follows:
223 Native title
Common law rights and interests
(1)The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2)Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
Statutory rights and interests
(3)Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.
Note:Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.
Subsection (3) does not apply to statutory access rights
(3A)Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).
Case not covered by subsection (3)
(4)To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):
(a) in a pastoral lease granted before 1 January 1994; or
(b)in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.
The preconditions of this section have been considered extensively by the High Court, most notably in Members of the Yorta YortaAboriginal Community v Victoria [2002] HCA 58; 214 CLR 422. As submitted by the parties, a threshold requirement for a successful native title determination application is that the evidence demonstrates that there is a recognisable group or society that presently recognises and observes traditional laws and customs in relation to the determination area. In defining that group or society, the following must also be evident:
(a)that they are, or are part of, a society united in and by their acknowledgement and observance of a body of accepted laws and customs;
(b)that the present-day body of accepted laws and customs of the society, in essence, is the same body of laws and customs acknowledged and observed by the ancestors of the claimants or a permissible adaptation thereof; and
(c)that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty and that the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs: Risk v Northern Territory [2006] FCA 404 at [8], [802]–[811]; see also Yorta Yorta at [49]–[56]; [86]–[89].
I am satisfied that the preconditions of s 223 have been met (for the reasons set out at paragraphs [47]–[59] below).
Section 225 of the NTA then sets out what a determination of native title must include. Section 225 provides as follows:
225 Determination of native title
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Note:The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.
Section 94A of the NTA requires that a determination made by the Court must set out the details of the matters mentioned in s 225 of the NTA.
I am satisfied that the requirements of s 225 have been met, by reason of the following facets of the consent determination :
(a)the external boundaries of the determination area are described (Schedule 1) and set out with particularity those areas where native title exists (Native Title Land) (paragraphs 7–8) and those areas where native title is extinguished (paragraph 9);
(b)there is specification, in paragraph 10, of the group of native title holders and the criteria by which they have group membership: s 225(a);
(c)the nature and extent of the native title rights and interests in the determination area is set out in paragraph 11. Paragraphs 12–14 describe material limitations on the exercise of those native title rights and interests: s 225(b);
(d)the nature and extent of other interests in the Native Title Land is set out in paragraph 15: s 225(c);
(e)the relationship between the native title rights and interests in paragraph 11 and those other rights and interests are set out in paragraph 16: s 225(d); and
(f)the native title rights and interests are recognised to be non-exclusive in paragraph 11 (subject to paragraphs 12, 13 and 14 of the Determination): s 225(e).
The Court is required to be satisfied ultimately that it is “appropriate” to make a proposed determination. This arises from the fact that a determination of native title, even where it is made by consent of the parties, not only binds the parties but the entire world: Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [22].
I am satisfied that it is appropriate to make the proposed orders and determination.
I am satisfied that the terms of the proposed determination of native title are clear (as to the determination area, the nature of the native title rights and interests, the recognised nature and extent of other interests in the determination area and how they may co-exist).
The Wilyakali people have been recognised in the Coulthard native title determination (referred to above). Furthermore, the evidence referred to above (including the extensive anthropological evidence) provides a probative basis for the applicants making the proposed determination of native title.
The evidence satisfies me that the Wilyakali as a sub-group of the Regional Paakantyi Group are defined by broad cognatic descent from their ancestors who owned and occupied the determination area at sovereignty and early contact, and from ‘known’ named ancestors belonging to more recent history.
The members of the claim group can demonstrate their direct link through descent to Wilyakali named ancestors to be the primary land owners of the determination area according to the wider Paakantyi Society’s traditional laws and customs.
The claimant group can demonstrate that they are descendants (including by adoption) of named apical ancestors Mr Jack Tyler and his niece Ms Minnie Crozier (Bates), Ms Mary Walgu and Mr Outalpa Dick who were descendants of Wilyakali ancestors identified in the record as occupying in the determination area prior to white settlement in 1836. The members of the claim group identify as Wilyakali and are recognised by the other Native Title Holders under those traditional laws and customs as having rights and interests in the determination area.
The experts identified early anthropological records that locate Wilyakali people at or geographically close from Oulnina to the SA/NSW border and includes the whole of the following pastoral leases: Aroona West, Benda, Bundera, Canewood, Devonborough Downs, D’Lorah Downs, Eringa Park, Lake Dismal, Maldorky, Mundi Mundi, Pine Creek, Radium Hill, Taltabooka North, Tepco, Tikalina, Wadnaminga, Wawirra, and Wiawera; and portions of Bindarrah, Boolcoomatta, Kalkaroo, Manunda, Mulyungarie, Mutooroo, Netley Gap, Oakbank, Oulnina, Oulnina Park, Quandong, Tiverton, Wompinie, and Yarumba.
The agreed boundary with the Ngadjuri reflects the compromise reached for resolution of the formerly overlapping claims and while it does not precisely follow any topographical feature the agreed boundary ensures that certain areas of significance to the Wilyakali people are included in their determination area. This does not prevent a determination being made here by consent of all the parties, providing there is evidence that the criteria under ss 223(1) and (2) of the NTA are met for the proposed determination area.
I am satisfied that there has been substantially uninterrupted observance of traditional laws and customs since sovereignty. The State and the Court accepted in Coulthard that the Wilyakali people exercise traditional laws and customs which continue to have a vitality in contemporary society.
As submitted by the parties, members of the contemporary Wilyakali group with the proposed determination area have this connection through their laws and customs. Although a number of claimant families live outside of the claim area, some ancestors worked on pastoral leases in the determination area and the current group members have provided evidence supporting their continuing connection through activities undertaken in accordance with traditional laws and customs in and across the area including:
·speaking for and taking responsibility for country;
·camping and visiting country;
·sharing cultural knowledge about sites and traditions;
·hunting and gathering and sharing resources;
·spiritual practices such as smoking ceremonies; and
·knowledge and teaching of Mura (dreamings) relating to the determination area, including Eaglehawk and Crow and Bronze-winged Pigeon (Marnpi).
This exemplifies evidence of land-based oral traditions; namely details of Wilyakali Mura stories (Dreaming), particular access rules and knowledge regarding sites which continue to be observed. The evidence is supportive that the proposed determination area falls within traditional Wilyakali country. Ms Jarvis, in her report in 2020, referred to the evidence of many Wilyakali people including vivid accounts of Ms Maureen O’Donnell (now deceased), the mother of Ms Dulcie O’Donnell and Mr Glen O’Donnell. Ms Maureen O’Donnell described her childhood, being shown and attending sacred sites and being taught and then retelling and teaching the Dreaming stories to her children and grandchildren. The evidence supports the conclusion that there are normative rules and laws which are traditionally-based.
I am satisfied that this evidence demonstrates that, despite the unfortunate fact of some cultural losses which have occurred since sovereignty, there is sufficient basis to accept for the purposes of a consent determination that the system of traditional laws and customs presently observed by the Wilyakali people provide them a relevant connection to the proposed determination area.
The rights and interests to be recognised are set out in paragraph 11 of the consent determination.
These rights and interests are consistent with the rights and interests that would have been observed traditionally. They are also consistent with rights recognised in the earlier Adnyamathanha, Ngadjuri and Wilyakali overlap determination and elsewhere in South Australia.
It was submitted by the State that it is satisfied that the native title rights and interests claimed arise from the Native Title Holders’ traditional laws and customs and that they have evolved from the native title rights and interests as they were likely to have been at sovereignty. This is because:
(a)there is evidence that a number of Wilyakali people continue to have a physical connection with the proposed determination area and continue to access this area for traditional purposes;
(b)a number of claimants continue to access the resources of the area. People continue to camp in key places throughout the claim area; and
(c)the Wilyakali people have demonstrated knowledge about Wilyakali country and its culturally significant sites and stories.
In the joint submissions, the applicants and the State submitted the following (demonstrative of the appropriateness of making the proposed determination):
(a)all parties save for Lodestone Mines Limited are legally represented. However, Lodestone Mines has not raised any concerns in relation to the making of the consent determination.
(b)the parties have agreed to the nature and extent of the applicants’ and other interests in relation to the determination area.
(c)the State has played an active role, not only in the negotiation of the consent determination, but the other related determinations. The State acts on behalf of the community generally having regard to the requirements of the NTA and having conducted its own assessment process, in accordance with the Policy, is satisfied that the determination is justified in all the circumstances.
Section 55 requirements
Section 55 of the NTA requires that if the Court proposes to make an approved determination of native title and the determination is that native exists, the Court must, at the same time as, or as soon as practicable after it makes the determination, make such determinations as required under ss 56 (concerning holding the native title on trust) or 57 (dealing with the non-trust functions of prescribed bodies corporate). Proposed order 17 is to the effect that native title is not to be held on trust. Accordingly, s 57(2) requires that certain steps must be taken to determine which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions in s 57(3).
The parties seek a determination that the “Wilyakali Native Title Aboriginal Corporation” be such a body. That agreed position is supported by an affidavit of Ms Leonora Jamille Aiyana Herweijer. In her affidavit, she deposes that the Wilyakali claim group, at a meeting in Broken Hill NSW on 1 and 2 April 2023, nominated the Wilyakali Native Title Aboriginal Corporation to be their prescribed body corporate and authorised that body as being the body for the proposed determination. On 14 August 2023, that body was registered by the Office of the Registrar of Indigenous Corporations as the Wilyakali Native Title Aboriginal Corporation ICN 10042. Ms Herweijer wrote to, and received consent and/or no objection from, the other parties to this matter that proposed order 18 include the full title of the prescribed body including the ICN number.
As a consequence, pursuant to s 57(2)(b), I determine that the Wilyakali Native Title Aboriginal Corporation ICN 10042 is to be a prescribed body corporate to perform the functions prescribed under s 57(3) of the NTA.
For these reasons, I am satisfied that it is appropriate to make the proposed orders and the proposed determination of native title.
Conclusion
I will make the orders proposed by the parties and I will make a determination of native title as proposed by the parties.
By making these orders and the determination, I note that the determination is not creating but rather recognising, under the Australian legal system, the Wilyakali peoples’ long-held native title in this land, according to their traditional laws and customs which existed long before British sovereignty.
The Court recognises the many parties involved in the making of this agreement and commends its conclusion by agreement.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.
Associate:
Dated: 28 August 2023
SCHEDULE OF PARTIES
SAD 89 of 2022 Respondents
Respondent:
HAVILAH RESOURCES NL
Respondent:
LODESTONE MINES LIMITED
Respondent:
MAGNETITE MINES LIMITED
Respondent:
AMPLITEL PTY LTD
Respondent:
TELSTRA CORPORATION LIMITED
- AGLC
- O'Donnell on behalf of the Wilyakali Native Title Claim v State of South Australia [2023] FCA 1000
- Case
- [2023] FCA 1000
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. There be a Determination of native title in the Determination Area in the terms set out at paragraphs 6 to 16 below.
2. The Determination take effect upon the ILUA being registered on the Register of Indigenous Land Use Agreements.
3. In the event that the ILUA is not registered on the Register of Indigenous Land Use Agreements within eight (8) months from the date of this order, or such later time as the Court may order, the matter is to be listed for further directions.
4. The Applicant (prior to the Determination taking effect) or the Prescribed Body Corporate (after the Determination takes effect), the State and any other respondent have liberty to apply on 14 days’ notice to a single judge of the Court:
(a) if that party considers that the ILUA will not be registered on the Register of Indigenous Land Use Agreements within 8 months of the date of this order;
(b) to establish the precise location and boundaries of any Public Works and adjacent land and waters referred to in items 2 or 3 of Schedule 4;
(c) to determine the effect on native title rights and interests of any Public Works as referred to in item 3 of Schedule 4.
5. Each party to the proceeding is to bear its own costs.
THE COURT DETERMINES THAT:
Interpretation
6. In this Determination, including its schedules:
(a) unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Part 15 of the NTA; and
(b) in the event of an inconsistency between a written description of an area in a schedule and the depiction of that area on the maps in Schedule 2, the written description shall prevail.
Determination Area
7. Schedule 1 describes the external boundaries of the Determination Area.
Areas within Determination Area where native title exists (Native Title Land)
8. Subject to Schedule 4, native title exists in the land and waters described in Schedule 3.
Areas within Determination Area where native title does not exist
9. Pursuant to section 225 of the NTA, native title does not exist in relation to all of the land and waters comprised in those areas described in Schedule 4.
Native Title Holders
10. Under the traditional laws and customs of the Wilyakali People the Native Title Holders are those living Aboriginal people who are the descendants (including by adoption, as defined below) of the following apical ancestors:
(i) Jack Tyler and his niece Minnie Crozier (Bates);
(ii) Mary Walgu; and
(iii) Outalpa Dick;
and who identify as Wilyakali and are recognised by the other Native Title Holders under those traditional laws and customs as having rights and interests in the Determination Area (collectively, Native Title Holders).
In the foregoing, the words ‘including by adoption’ are intended to include as Native Title Holders:
(a) those Aboriginal persons, who were or are raised as children and as part of the families of any of the apical ancestors or their biological descendants; and
(b) descendants of the Aboriginal persons described in (a) above.
Rights and Interests
11. Subject to paragraphs 12, 13 and 14, the nature and extent of the native title rights and interests in the Native Title Land are the non-exclusive rights to use and enjoy those lands and waters, being:
(a) The right to access and move about;
(b) The right to live, to camp and to erect shelters and other structures;
(c) The right to hunt and fish;
(d) The right to gather and use the natural resources such as food, plants, timber, resin, ochre and soil;
(e) The right to cook and to light fires for cooking and camping purposes;
(f) The right to use the natural water resources, subject to the Landscape South Australia Act 2019 (SA);
(g) The right to distribute, trade or exchange the natural resources;
(h) The right to conduct ceremonies and hold meetings;
(i) The right to engage and participate in cultural activities including those relating to births and deaths;
(j) The right to carry out and maintain burials of deceased native title holders and of their ancestors;
(k) The right to teach on the Native Title Land the physical and spiritual attributes of locations and sites;
(l) The right to visit, maintain and preserve sites and places of cultural or spiritual significance to Native Title Holders under their traditional laws and customs;
(m) the right to be accompanied on the land and waters by those people who, though not Wilyakali persons, are
(i) spouses of Wilyakali persons; or
(ii) people required by the traditional laws and customs for the performance of ceremonies or cultural activities; or
(iii) people who have rights in relation to the Native Title Land according to traditional laws and customs acknowledged by the Native Title Holders.
General Limitations
12. The native title rights and interests set out at paragraph 11 are for personal, domestic and communal use but do not include the right to trade in, or the commercial use of, the Native Title Land or the resources from it.
13. The native title rights and interests described in paragraph 11 do not confer possession, occupation, use and enjoyment of the land and waters on the Native Title Holders to the exclusion of others.
14. The native title rights and interests set out at paragraph 11 are subject to and exercisable in accordance with:
(a) the traditional laws and customs of the Native Title Holders; and
(b) the valid laws of the State and Commonwealth, including the common law.
Other Interests and Relationship with Native Title
15. The nature and extent of other interests in the Native Title Land are:
(a) the interests of the Crown in right of the State of South Australia;
(b) the interests of the Commonwealth of Australia, if any;
(c) in relation to reserves as defined in the National Parks and Wildlife Act 1972 (SA):
(i) the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA); and
(ii) the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA); and
(d) interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power including, but not limited to, rights and interests granted or recognised pursuant to the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Native Vegetation Act 1991 (SA), Fisheries Management Act 2007 (SA), Landscape South Australia Act 2019 (SA), Mining Act 1971 (SA), and Petroleum and Geothermal Energy Act 2000 (SA), all as amended from time to time;
(e) rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth;
(f) the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;
(g) the rights and interests of all parties to the ILUA;
(h) the rights and interests of Telstra Corporation Limited (ACN 051 775 556) and Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75 357 171 746) and any of their related bodies corporate and successors in title:
(i) as the owners or operators of telecommunications facilities within the Native Title Land;
(ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
1. to inspect land;
2. to install, occupy and operate telecommunications facilities; and
3. to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(iii) for their employees, agents or contractors to access their telecommunications facilities in and in the vicinity of the Native Title Land in performance of their duties; and
(iv) under any lease, licence, permit, access agreement or easement relating to their telecommunications facilities within the Native Title Land;
(i) the rights and interests of Havilah Resources Ltd, (Havilah) (including its wholly owned subsidiaries Iron Genesis Pty Ltd, (Iron Genesis) Copper Aura Pty Ltd (Copper Aura) Maldorky Iron Pty Ltd (Maldorky) and Mutooroo Metals Pty Ltd (Mutooroo)) and their related entities and successors in title from time to time in the mineral tenements listed below:
(i) Havilah,- as holder of exploration licence numbers 5853, 5903, 5904, 5956, 6194, 6203, 6211, 6258, 6355, 6359, 6360, 6428, 6567, 6593, 6660;
(ii) Iron Genesis – as holder of exploration licence numbers 5848, 6041, 6054, 6280 and 6361;
(iii) Copper Aura- as holder of exploration licence numbers 5882, 6163, 6592 and 6657;
(iv) Maldorky- as holder of registered mineral claim numbers 4364, 4271, 4272, 4273 and 4374;
(v) Mutooroo – as holder of registered mineral claim numbers 3565 and 3566,
in each case granted pursuant to the Mining Act 1971 (SA) and any subsequent licence, for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties
(j) the rights and interests of Magnetite Mines Ltd (Magnetite) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i) Magnetite – as the holder of exploration licence number 6037 and as applicant for exploration licence application number 2020/00133 granted or applied for pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties.
(k) the rights and interests of Boss Uranium Ltd (Boss) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i) Boss – as the holder of exploration licence number 6510 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(l) the rights and interests of Hamelin Gully Pty Ltd (Hamelin) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i) Hamelin – as the holder of exploration licence numbers 6009, 6046 and 6646 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(m) the rights and interests of Lodestone Mines Pty Ltd (Lodestone) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i) Lodestone – as the holder of exploration licence numbers 6006 and 6117, granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(n) the rights and interests of Investigator Resources Ltd (including its wholly owned subsidiary Gawler Resources Pty Ltd (Gawler)) and their related entities and successors in title from time to time in the mineral tenements listed below:
(i) Gawler – as the holder of exploration licence numbers 5938, 6253 and 6345 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(o) the rights and interests of Renascor Resources Ltd (including its wholly owned subsidiary Astra Resources Pty Ltd (Astra)) and their related entities and successors in title from time to time in the mineral tenements listed below:
(i) Astra – as the holder of exploration licence number 6451 granted pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
(p) the rights and interests of PepinNini Minerals Ltd (PNN) and its related entities and successors in title from time to time in the mineral tenements listed below:
(i) PNN – as the applicant for exploration licence application number 2020/00136 applied for pursuant to the Mining Act 1971 (SA) and any subsequent licence,
for the employees, agents or contractors of the above-named entities to enter the Determination Area to access their respective rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area and performance of their duties.
16. The relationship between the native title rights and interests in the Native Title Land that are described in paragraph 11 and the other rights and interests that are described in paragraph 16 (the Other Interests) is that:
(a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests;
(b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of the NTA or the Native Title (South Australia) Act 1994 (SA), do not extinguish them.
AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS:
17. The native title is not to be held on trust.
18. The Wilyakali Native Title Aboriginal Corporation ICN 10042 is to:
(a) be the prescribed body corporate for the purposes of section 57(2) of the NTA; and
(b) the functions mentioned in section 57(3) of the NTA after becoming the registered native title body corporate in relation to the Native Title Land.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE 1
Location of and areas comprising the Determination Area
External Boundary Description
The application area covers all the land and waters within the external boundary described as: Commencing at a point on the New South Wales – South Australia State Border at Latitude 31.249987° South and extending southerly along that state border to Latitude 32.766653° South; then south westerly to the intersection with the eastern boundary of Pastoral Lease PE002224 (Quondong) at Latitude 32.869397° South, then south westerly, northerly, and north westerly passing through the following coordinate points:
Longitude (East)
Latitude (South)
139.983881
32.949759
139.983881
32.677172
139.866395
32.659921
Then northerly to the south eastern corner of the southern severance of Pastoral Lease PE002255 (Winnininnie); then northerly along the eastern boundary of that pastoral lease to the north western corner of Pastoral Lease PE002213 (Oulnina); then extending along the prolongation northerly of the western boundary of that pastoral lease to intersect the southern boundary of the Barrier Highway road corridor, also being a point on the southern boundary of Native Title Determination SAD6001/1998, SAD147/2010, SAD417/2015 Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim (SCD2018/002); then generally north easterly and generally northerly along the southern and eastern boundaries of that native title determination to a point at Latitude 31.476869° South, then north easterly back to the commencement point.
SCHEDULE 2
MAPS
Part A: Map of the External Boundaries of the Determination Area and the boundary between the Native Title Land and the Negative Determination Area
SCHEDULE 2
MAPS
Part B: Maps depicting Native Title Land
SCHEDULE 3
Land and waters where native title exists (Native Title Land)
Note: Please refer to maps provided in Schedule 2 Part B for further detail where a portion of a parcel is indicated.
DCDBID
Hundred
Title Reference
Native Title Status
Native Title Status - Portion Remainder
F250191A102 (portion)
OH(CURNAMONA)
CL6160/319 PE002216
NT Extinguished
NT Exists
F250191A102 (portion)
OH(CURNAMONA)
CL6160/319 PE002216
NT Exists
NT Extinguished
F250504A119 (portion)
OH(CURNAMONA)
CL6164/289 PE002371
NT Extinguished
NT Exists
F250504A119 (portion)
OH(CURNAMONA)
CL6164/289 PE002371
NT Exists
NT Extinguished
F251775A42 (portion)
OH(CURNAMONA)
CL6182/777 PE002361
NT Extinguished
NT Exists
F251775A42 (portion)
OH(CURNAMONA)
CL6182/777 PE002361
NT Exists
NT Extinguished
H834800B1121
OH(CURNAMONA)
CL6162/839 PE002278
NT Exists
H834800B892
OH(CURNAMONA)
CL6179/286 PE002303
NT Exists
H834800B979
OH(CURNAMONA)
CL6179/994 PE002279
NT Exists
H834800B984
OH(CURNAMONA)
CL6181/747 PE002360
NT Exists
D30328A2002 (portion)
OH(OLARY)
CL6160/604 PE002263
NT Extinguished
NT Exists
D30328A2002 (portion)
OH(OLARY)
CL6160/604 PE002263
NT Exists
NT Extinguished
D30328A2003 (portion)
OH(OLARY)
CL6200/875 PE002465
NT Extinguished
NT Exists
D30328A2003 (portion)
OH(OLARY)
CL6200/875 PE002465
NT Exists
NT Extinguished
D34040A100
OH(OLARY)
CL6186/330 PE002525
NT Exists
D34040A102
OH(OLARY)
CR5750/442
NT Exists
D34040Q110
OH(OLARY)
CL6186/330 PE002525
NT Exists
D34040Q111
OH(OLARY)
CL6186/330 PE002525
NT Exists
D34040Q112
OH(OLARY)
CL6186/330 PE002525
NT Exists
F252584A125
OH(OLARY)
CL6194/510 PE002217
NT Exists
F36714A100
OH(OLARY)
CR5302/977
NT Exists
F36714A102
OH(OLARY)
CR5302/973
NT Exists
F36714A103
OH(OLARY)
CR5302/974
NT Exists
F36714A109
OH(OLARY)
CR5304/85
NT Exists
F36714A110
OH(OLARY)
CR5304/86
NT Exists
F36714A112
OH(OLARY)
CL6174/60 PE002206
NT Exists
F36714A72
OH(OLARY)
CR5302/972
NT Exists
F36714A94
OH(OLARY)
CR5302/977
NT Exists
F36714A96
OH(OLARY)
CR5302/977
NT Exists
F36714A97
OH(OLARY)
CR5302/977
NT Exists
H835400B1145 (portion)
OH(OLARY)
CL6179/983 PE002354
NT Extinguished
NT Exists
H835400B1145 (portion)
OH(OLARY)
CL6179/983 PE002354
NT Exists
NT Extinguished
H835400B1149
OH(OLARY)
CL6174/66 PE002367
NT Exists
H835400B1153 (portion)
OH(OLARY)
CL1298/29 PE002362
NT Extinguished
NT Exists
H835400B1153 (portion)
OH(OLARY)
CL1298/29 PE002362
NT Exists
NT Extinguished
H835400B1192 (portion)
OH(OLARY)
CL6209/679 PE002436
NT Extinguished
NT Exists
H835400B1192 (portion)
OH(OLARY)
CL6209/679 PE002436
NT Exists
NT Extinguished
H835400B1243
OH(OLARY)
CL6172/480 PE002198
NT Exists
H835400B650
OH(OLARY)
CL6207/261 PE002234
NT Exists
H835400B655 (portion)
OH(OLARY)
CL6171/861 PE002236
NT Extinguished
NT Exists
H835400B655 (portion)
OH(OLARY)
CL6171/861 PE002236
NT Exists
NT Extinguished
H835400B899
OH(OLARY)
CL6209/733 PE002223
NT Exists
H835400B912 (portion)
OH(OLARY)
CL6184/316 PE002537
NT Extinguished
NT Exists
H835400B912 (portion)
OH(OLARY)
CL6184/316 PE002537
NT Exists
NT Extinguished
H835400B932
OH(OLARY)
CL6209/714 PE002233
NT Exists
H835400B960
OH(OLARY)
CL6209/815 PE002213
NT Exists
H835400B961 (portion)
OH(OLARY)
CL6209/248 PE002214
NT Extinguished
NT Exists
H835400B961 (portion)
OH(OLARY)
CL6209/248 PE002214
NT Exists
NT Extinguished
H835400B962
OH(OLARY)
CL6207/261 PE002234
NT Exists
H835400B980
OH(OLARY)
CL6209/728 PE002222
NT Exists
H835400B981
OH(OLARY)
CL6187/48 PE002409
NT Exists
H835400B994
OH(OLARY)
CL6184/461 PE002538
NT Exists
H835400S1118
OH(OLARY)
CR5764/622
NT Exists
H835400S1119
OH(OLARY)
CR5759/733
NT Exists
H835400S1120
OH(OLARY)
CR5759/733
NT Exists
H835400S1121
OH(OLARY)
CR5769/173
NT Exists
H835400S1122
OH(OLARY)
CR5769/174
NT Exists
H835400S1123
OH(OLARY)
CR5769/175
NT Exists
H835400S1124
OH(OLARY)
CR5769/176
NT Exists
H835400S1125
OH(OLARY)
CR5769/177
NT Exists
H835400S1126
OH(OLARY)
CR5769/178
NT Exists
H835400S1127
OH(OLARY)
CR5769/179
NT Exists
H835400S1128
OH(OLARY)
CR5769/180
NT Exists
H835400S1132
OH(OLARY)
CR5764/625
NT Exists
H835400S1135
OH(OLARY)
CR5759/755
NT Exists
H835400S1282
OH(OLARY)
CR5339/268
NT Exists
H835400S1415
OH(OLARY)
CR5748/5
NT Exists
H835400S1416
OH(OLARY)
CR5748/6
NT Exists
H835400S1471
OH(OLARY)
CR5750/445
NT Exists
H835400S1490
OH(OLARY)
CR5764/626
NT Exists
H835400S9
OH(OLARY)
CR5757/312
NT Exists
T835401A111
OH(OLARY)
CR5764/628
NT Exists
T835401A112
OH(OLARY)
CR5764/629
NT Exists
T835401A125
OH(OLARY)
CR5764/630
NT Exists
T835401A129
OH(OLARY)
CR5769/186
NT Exists
T835401A141
OH(OLARY)
CR5769/187
NT Exists
T835401A143
OH(OLARY)
CR5769/188
NT Exists
T835401A145
OH(OLARY)
CR5769/189
NT Exists
T835401A147
OH(OLARY)
CR5769/190
NT Exists
T835401A149
OH(OLARY)
CR5769/191
NT Exists
T835401A151
OH(OLARY)
CR5769/192
NT Exists
T835401A153
OH(OLARY)
CR5769/193
NT Exists
T835401A154
OH(OLARY)
CR5769/194
NT Exists
T835401A155
OH(OLARY)
CR5769/195
NT Exists
T835401A156
OH(OLARY)
CR5769/196
NT Exists
T835401A157
OH(OLARY)
CR5769/197
NT Exists
T835401A158
OH(OLARY)
CR5769/198
NT Exists
T835401A159
OH(OLARY)
CR5769/199
NT Exists
T835401A161
OH(OLARY)
CR5769/200
NT Exists
T835401A171
OH(OLARY)
CR5769/201
NT Exists
T835401A173
OH(OLARY)
CR5769/202
NT Exists
T835401A25
OH(OLARY)
CR5764/627
NT Exists
T835401A27
OH(OLARY)
CR5769/182
NT Exists
T835401A55
OH(OLARY)
CR5754/401
NT Exists
T835401A74
OH(OLARY)
CR5769/183
NT Exists
T835401A78
OH(OLARY)
CR5769/184
NT Exists
T835401A86
OH(OLARY)
CR5769/185
NT Exists
T835401A95
OH(OLARY)
CR5754/401
NT Exists
T835401A96
OH(OLARY)
CR5754/401
NT Exists
T835401A97
OH(OLARY)
CR5754/401
NT Exists
T835401A98
OH(OLARY)
CR5754/401
NT Exists
T835401A99
OH(OLARY)
CR5754/401
NT Exists
T835405A1
OH(OLARY)
CR5764/638
NT Exists
T835405A10
OH(OLARY)
CR5748/14
NT Exists
T835405A11
OH(OLARY)
CR5748/15
NT Exists
T835405A12
OH(OLARY)
CR5748/16
NT Exists
T835405A13
OH(OLARY)
CR5748/17
NT Exists
T835405A14
OH(OLARY)
CR5748/18
NT Exists
T835405A16
OH(OLARY)
CR5748/19
NT Exists
T835405A17
OH(OLARY)
CR5748/20
NT Exists
T835405A18
OH(OLARY)
CR5764/642
NT Exists
T835405A19
OH(OLARY)
CR5764/643
NT Exists
T835405A2
OH(OLARY)
CR5764/639
NT Exists
T835405A22
OH(OLARY)
CR5748/21
NT Exists
T835405A23
OH(OLARY)
CR5748/22
NT Exists
T835405A25
OH(OLARY)
CR5748/23
NT Exists
T835405A26
OH(OLARY)
CR5748/24
NT Exists
T835405A27
OH(OLARY)
CR5748/25
NT Exists
T835405A28
OH(OLARY)
CR5748/26
NT Exists
T835405A29
OH(OLARY)
CR5748/27
NT Exists
T835405A3
OH(OLARY)
CR5748/9
NT Exists
T835405A32
OH(OLARY)
CR5748/28
NT Exists
T835405A33
OH(OLARY)
CR5748/29
NT Exists
T835405A34
OH(OLARY)
CR5748/30
NT Exists
T835405A35
OH(OLARY)
CR5748/31
NT Exists
T835405A36
OH(OLARY)
CR5748/32
NT Exists
T835405A37
OH(OLARY)
CR5748/33
NT Exists
T835405A38
OH(OLARY)
CR5748/34
NT Exists
T835405A39
OH(OLARY)
CR5748/35
NT Exists
T835405A4
OH(OLARY)
CR5748/10
NT Exists
T835405A40
OH(OLARY)
CR5748/36
NT Exists
T835405A41
OH(OLARY)
CR5748/37
NT Exists
T835405A42
OH(OLARY)
CR5748/38
NT Exists
T835405A43
OH(OLARY)
CR5748/39
NT Exists
T835405A44
OH(OLARY)
CR5748/40
NT Exists
T835405A45
OH(OLARY)
CR5748/41
NT Exists
T835405A46
OH(OLARY)
CR5748/42
NT Exists
T835405A47
OH(OLARY)
CR5748/43
NT Exists
T835405A48
OH(OLARY)
CR5748/44
NT Exists
T835405A49
OH(OLARY)
CR5748/45
NT Exists
T835405A5
OH(OLARY)
CR5748/11
NT Exists
T835405A50
OH(OLARY)
CR5748/46
NT Exists
T835405A51
OH(OLARY)
CR5748/47
NT Exists
T835405A52
OH(OLARY)
CR5748/48
NT Exists
T835405A54
OH(OLARY)
CR5748/49
NT Exists
T835405A55
OH(OLARY)
CR5748/50
NT Exists
T835405A56
OH(OLARY)
CR5748/51
NT Exists
T835405A57
OH(OLARY)
CR5748/52
NT Exists
T835405A58
OH(OLARY)
CR5748/53
NT Exists
T835405A59
OH(OLARY)
CR5748/54
NT Exists
T835405A6
OH(OLARY)
CR5748/12
NT Exists
T835405A60
OH(OLARY)
CR5748/55
NT Exists
T835405A61
OH(OLARY)
CR5748/56
NT Exists
T835405A62
OH(OLARY)
CR5748/57
NT Exists
T835405A63
OH(OLARY)
CR5748/58
NT Exists
T835405A64
OH(OLARY)
CR5748/59
NT Exists
T835405A65
OH(OLARY)
CR5748/60
NT Exists
T835405A66
OH(OLARY)
CR5748/61
NT Exists
T835405A67
OH(OLARY)
CR5748/62
NT Exists
T835405A68
OH(OLARY)
CR5748/63
NT Exists
T835405A69
OH(OLARY)
CR5748/64
NT Exists
T835405A7
OH(OLARY)
CR5748/13
NT Exists
T835405A70
OH(OLARY)
CR5748/65
NT Exists
T835405A71
OH(OLARY)
CR5748/66
NT Exists
T835405A72
OH(OLARY)
CR5748/67
NT Exists
T835405A73
OH(OLARY)
CR5748/68
NT Exists
T835405A74
OH(OLARY)
CR5748/69
NT Exists
T835405A75
OH(OLARY)
CR5748/70
NT Exists
T835405A76
OH(OLARY)
CR5748/71
NT Exists
T835405A8
OH(OLARY)
CR5764/640
NT Exists
T835405A9
OH(OLARY)
CR5764/641
NT Exists
SCHEDULE 4
Areas where native title does not exist
Note: Please refer to maps provided in Schedule 2 Part B for further detail where a portion of a parcel is indicated.
1. Native title rights and interests do not exist in:
(a) minerals as defined in section 6 of the Mining Act 1971 (SA);
(b) petroleum, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA);
(c) a naturally occurring underground accumulation of a regulated substance as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth;
(d) a natural reservoir, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth;
(e) geothermal energy, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA) the source of which is below a depth of 100 metres from the surface of the earth.
For the purposes of this item 1 and the avoidance of doubt:
(f) a geological structure (in whole or in part) on or at the earth’s surface or a natural cavity which can be accessed or entered by a person through a natural opening in the earths surface, is not a natural reservoir;
(g) thermal energy contained in a hot or natural spring is not geothermal energy as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA);
(h) the absence from this Order of any reference to a natural reservoir or a naturally occurring accumulation of a regulated substance, as those terms are defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), above a depth 100 metres below the surface of the earth or geothermal energy the source of which is above a depth of 100 metres below the surface of the earth is not, of itself, to be taken as an indication of the existence or otherwise of native title rights or interests in such natural reservoir, naturally occurring accumulation of a regulated substance or geothermal energy.
2. Native title rights and interests have been extinguished in the areas of Native Title Land covered by Public Works (including the land and waters defined in section 251D of the NTA) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date.
3. Public Works constructed, established or situated after 23 December 1996 on Native Title Land have had such effect as has resulted from Part 2, Division 3, of the NTA.
4. Native title rights and interests have been extinguished over all roads which have been delineated in a public map pursuant to section 5(d)(ii) of the Crown Lands Act 1929 (SA) or section 70(3) or (4) of the Crown Land Management Act 2009 (SA) or which have otherwise been validly established pursuant to South Australian statute or common law.
5. Native title rights and interests do not exist over any land and waters within the Determination Area other than those parcels listed at Schedules 3 and 4 and do not exist in any land or waters beyond 50 metres seaward of the Lowest Astronomical Tide as defined by Geoscience Australia Coastline Information Capture Program Australia 2016.
6. For ease of reference (but without limiting the above), native title does not exist in the parcels listed below:
DCDBID
Hundred
Title Reference
Native Title Status
Native Title Status - Portion Remainder
F250191A102 (portion)
OH(CURNAMONA)
CL6160/319 PE002216
NT Extinguished
NT Exists
F250504A119 (portion)
OH(CURNAMONA)
CL6164/289 PE002371
NT Extinguished
NT Exists
F251775A42 (portion)
OH(CURNAMONA)
CL6182/777 PE002361
NT Extinguished
NT Exists
D30328A2002 (portion)
OH(OLARY)
CL6160/604 PE002263
NT Extinguished
NT Exists
D30328A2003 (portion)
OH(OLARY)
CL6200/875 PE002465
NT Extinguished
NT Exists
D30328A2004
OH(OLARY)
CT6007/186
NT Extinguished
D34040A106
OH(OLARY)
CT5316/802
NT Extinguished
D34040A108
OH(OLARY)
CR5752/722
NT Extinguished
D34040A116
OH(OLARY)
CL6186/330 PE002525
NT Extinguished
D40684A200
OH(OLARY)
CT5216/748
NT Extinguished
D40684A201
OH(OLARY)
CT5216/749
NT Extinguished
D40684A202
OH(OLARY)
CT5216/750
NT Extinguished
D40684A203
OH(OLARY)
CT5216/751
NT Extinguished
D40684A204
OH(OLARY)
CT5216/752
NT Extinguished
D79224A46
OH(OLARY)
CT6057/512
NT Extinguished
D79224Q43
OH(OLARY)
CT6057/511
NT Extinguished
D79224Q45
OH(OLARY)
CT6057/511
NT Extinguished
D80859A48
OH(OLARY)
CT6051/694
NT Extinguished
D80859A49
OH(OLARY)
CT6051/694
NT Extinguished
D80859A51
OH(OLARY)
CT6051/696
NT Extinguished
D80859A52
OH(OLARY)
CT6051/696
NT Extinguished
D80859Q50
OH(OLARY)
CT6051/695
NT Extinguished
D80859Q53
OH(OLARY)
CT6051/695
NT Extinguished
D80867A50
OH(OLARY)
CT6221/456
NT Extinguished
D80867A51
OH(OLARY)
CT6221/456
NT Extinguished
D80867A52
OH(OLARY)
CT6057/136
NT Extinguished
D80867A53
OH(OLARY)
CT6221/456
NT Extinguished
D80867A54
OH(OLARY)
CT6057/136
NT Extinguished
F104453A5
OH(OLARY)
CT5147/23
NT Extinguished
F104453A6
OH(OLARY)
CT5147/23
NT Extinguished
F199216A322
OH(OLARY)
CT5549/293
NT Extinguished
F200248A91
OH(OLARY)
CT5915/297
NT Extinguished
F200248A92
OH(OLARY)
CT5915/297
NT Extinguished
F200248A93
OH(OLARY)
CT5915/297
NT Extinguished
F200248A94
OH(OLARY)
CT5915/296
NT Extinguished
F200248A95
OH(OLARY)
CT5915/297
NT Extinguished
F209349A163
OH(OLARY)
CT5550/990
NT Extinguished
F209350A164
OH(OLARY)
CT5777/512
NT Extinguished
F209351A165
OH(OLARY)
CT5783/850
NT Extinguished
F209352A166
OH(OLARY)
CT5788/587
NT Extinguished
F209353A167
OH(OLARY)
CT5809/523
NT Extinguished
F209354A168
OH(OLARY)
CT5782/149
NT Extinguished
F214599A110
OH(OLARY)
CT6151/500
NT Extinguished
F215988A107
OH(OLARY)
CT5782/876
NT Extinguished
F218342A5
OH(OLARY)
CT5843/165
NT Extinguished
F251052A100
OH(OLARY)
CL6174/65 PE002398
NT Extinguished
F251333Q201
OH(OLARY)
CL6176/449 PE002200
NT Extinguished
F251689A110
OH(OLARY)
CL6181/578 PE002224
NT Extinguished
F251714A112
OH(OLARY)
CL6183/279 PE002208
NT Extinguished
F36714A1
OH(OLARY)
CR5302/975
NT Extinguished
F36714A10
OH(OLARY)
CR5302/975
NT Extinguished
F36714A101
OH(OLARY)
CR5302/978
NT Extinguished
F36714A104
OH(OLARY)
CR5988/385
NT Extinguished
F36714A105
OH(OLARY)
CT6221/456
NT Extinguished
F36714A107
OH(OLARY)
CR5774/658
NT Extinguished
F36714A108
OH(OLARY)
CT6221/456
NT Extinguished
F36714A11
OH(OLARY)
CR5302/975
NT Extinguished
F36714A113
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A114
OH(OLARY)
CT5885/778
NT Extinguished
F36714A115
OH(OLARY)
CR5304/87
NT Extinguished
F36714A12
OH(OLARY)
CL6196/846 OP017932
NT Extinguished
F36714A121
OH(OLARY)
CR5304/88
NT Extinguished
F36714A124
OH(OLARY)
CR5305/763
NT Extinguished
F36714A13
OH(OLARY)
CL6196/846 OP017932
NT Extinguished
F36714A14
OH(OLARY)
CL6196/846 OP017932
NT Extinguished
F36714A15
OH(OLARY)
CR5302/969
NT Extinguished
F36714A16
OH(OLARY)
CR5302/975
NT Extinguished
F36714A17
OH(OLARY)
CR5302/976
NT Extinguished
F36714A18
OH(OLARY)
CR5302/975
NT Extinguished
F36714A19
OH(OLARY)
CR5302/975
NT Extinguished
F36714A2
OH(OLARY)
CR5302/975
NT Extinguished
F36714A20
OH(OLARY)
CR5774/658
NT Extinguished
F36714A21
OH(OLARY)
CR5302/970
NT Extinguished
F36714A22
OH(OLARY)
CR5302/975
NT Extinguished
F36714A24
OH(OLARY)
CL6211/142 OP010127
NT Extinguished
F36714A25
OH(OLARY)
CL6211/142 OP010127
NT Extinguished
F36714A26
OH(OLARY)
CL6211/142 OP010127
NT Extinguished
F36714A27
OH(OLARY)
CL6211/142 OP010127
NT Extinguished
F36714A29
OH(OLARY)
CL6211/142 OP010127
NT Extinguished
F36714A3
OH(OLARY)
CR5302/975
NT Extinguished
F36714A34
OH(OLARY)
CL6174/60 PE002206
NT Extinguished
F36714A35
OH(OLARY)
CL6174/60 PE002206
NT Extinguished
F36714A36
OH(OLARY)
CL6174/60 PE002206
NT Extinguished
F36714A37
OH(OLARY)
CL6174/60 PE002206
NT Extinguished
F36714A38
OH(OLARY)
CL6174/61 OP005675
NT Extinguished
F36714A39
OH(OLARY)
CL6174/61 OP005675
NT Extinguished
F36714A4
OH(OLARY)
CR5302/975
NT Extinguished
F36714A40
OH(OLARY)
CL6174/61 OP005675
NT Extinguished
F36714A41
OH(OLARY)
CL6174/60 PE002206
NT Extinguished
F36714A42
OH(OLARY)
CL6174/61 OP005675
NT Extinguished
F36714A43
OH(OLARY)
CL6174/61 OP005675
NT Extinguished
F36714A44
OH(OLARY)
CL6174/61 OP005675
NT Extinguished
F36714A45
OH(OLARY)
CL6174/61 OP005675
NT Extinguished
F36714A46
OH(OLARY)
CL6174/61 OP005675
NT Extinguished
F36714A47
OH(OLARY)
CL6174/61 OP005675
NT Extinguished
F36714A48
OH(OLARY)
CL6174/62 OP007125
NT Extinguished
F36714A49
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A5
OH(OLARY)
CL6196/846 OP017932
NT Extinguished
F36714A50
OH(OLARY)
CL6174/62 OP007125
NT Extinguished
F36714A51
OH(OLARY)
CL6174/62 OP007125
NT Extinguished
F36714A52
OH(OLARY)
CL6174/64 OP004954
NT Extinguished
F36714A53
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A55
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A6
OH(OLARY)
CL6196/846 OP017932
NT Extinguished
F36714A60
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A61
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A65
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A66
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A67
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A68
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A69
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A7
OH(OLARY)
CL6196/846 OP017932
NT Extinguished
F36714A71
OH(OLARY)
CR5302/971
NT Extinguished
F36714A78
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714A8
OH(OLARY)
CR5302/975
NT Extinguished
F36714A9
OH(OLARY)
CR5302/975
NT Extinguished
F36714A92
OH(OLARY)
CL6210/752 OP004558
NT Extinguished
F36714A98
OH(OLARY)
CT6221/456
NT Extinguished
F36714Q116
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714Q117
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714Q118
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714Q119
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714Q120
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714Q122
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F36714Q123
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
F37353A6
OH(OLARY)
CL6186/330 PE002525
NT Extinguished
F37353A7
OH(OLARY)
CL6186/330 PE002525
NT Extinguished
H835400B1145 (portion)
OH(OLARY)
CL6179/983 PE002354
NT Extinguished
NT Exists
H835400B1153 (portion)
OH(OLARY)
CL1298/29 PE002362
NT Extinguished
NT Exists
H835400B1192 (portion)
OH(OLARY)
CL6209/679 PE002436
NT Extinguished
NT Exists
H835400B655 (portion)
OH(OLARY)
CL6171/861 PE002236
NT Extinguished
NT Exists
H835400B912 (portion)
OH(OLARY)
CL6184/316 PE002537
NT Extinguished
NT Exists
H835400B920
OH(OLARY)
CL6159/957 PE002485
NT Extinguished
H835400B961 (portion)
OH(OLARY)
CL6209/248 PE002214
NT Extinguished
NT Exists
H835400S1112
OH(OLARY)
CR5774/649
NT Extinguished
H835400S1113
OH(OLARY)
CR5764/621
NT Extinguished
H835400S1114
OH(OLARY)
CR5764/621
NT Extinguished
H835400S1131
OH(OLARY)
CR5764/624
NT Extinguished
H835400S1139
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
H835400S1140
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
H835400S1141
OH(OLARY)
CL6174/63 OP004539
NT Extinguished
H835400S1285
OH(OLARY)
CR5757/302
NT Extinguished
H835400S1578
OH(OLARY)
CT5398/784
NT Extinguished
H835400S1579
OH(OLARY)
CT5216/753
NT Extinguished
H835400S1580
OH(OLARY)
CT6100/910
NT Extinguished
H835400S1581
OH(OLARY)
CT5216/754
NT Extinguished
H835400S1582
OH(OLARY)
CT5398/863
NT Extinguished
H835400S1589
OH(OLARY)
CR5769/181
NT Extinguished
H835400S1594
OH(OLARY)
CT6007/183
NT Extinguished
H835400S257
OH(OLARY)
CR5774/648
NT Extinguished
H835400S345
OH(OLARY)
CR5757/301
NT Extinguished
H835400S394
OH(OLARY)
CL6200/875 PE002465
NT Extinguished
H835400S442
OH(OLARY)
CT5582/841
NT Extinguished
T835401A1
OH(OLARY)
CT5835/628
NT Extinguished
T835401A100
OH(OLARY)
CT5810/987
NT Extinguished
T835401A101
OH(OLARY)
CT5476/282
NT Extinguished
T835401A102
OH(OLARY)
CT5871/398
NT Extinguished
T835401A103
OH(OLARY)
CT5846/201
NT Extinguished
T835401A104
OH(OLARY)
CT5813/187
NT Extinguished
T835401A105
OH(OLARY)
CT5835/392
NT Extinguished
T835401A106
OH(OLARY)
CT5826/208
NT Extinguished
T835401A107
OH(OLARY)
CT5835/591
NT Extinguished
T835401A108
OH(OLARY)
CT5517/414
NT Extinguished
T835401A109
OH(OLARY)
CT5846/201
NT Extinguished
T835401A110
OH(OLARY)
CT5817/787
NT Extinguished
T835401A113
OH(OLARY)
CT5873/952
NT Extinguished
T835401A114
OH(OLARY)
CT5813/540
NT Extinguished
T835401A115
OH(OLARY)
CT6151/499
NT Extinguished
T835401A117
OH(OLARY)
CT5792/790
NT Extinguished
T835401A118
OH(OLARY)
CT5786/729
NT Extinguished
T835401A119
OH(OLARY)
CT6151/499
NT Extinguished
T835401A12
OH(OLARY)
CT5486/793
NT Extinguished
T835401A120
OH(OLARY)
CT5813/540
NT Extinguished
T835401A121
OH(OLARY)
CT5844/230
NT Extinguished
T835401A122
OH(OLARY)
CT5813/540
NT Extinguished
T835401A123
OH(OLARY)
CT5563/775
NT Extinguished
T835401A124
OH(OLARY)
CT5786/729
NT Extinguished
T835401A126
OH(OLARY)
CT5813/538
NT Extinguished
T835401A127
OH(OLARY)
CT5566/981
NT Extinguished
T835401A128
OH(OLARY)
CT5786/729
NT Extinguished
T835401A130
OH(OLARY)
CT5595/305
NT Extinguished
T835401A131
OH(OLARY)
CT5807/154
NT Extinguished
T835401A132
OH(OLARY)
CT5827/267
NT Extinguished
T835401A133
OH(OLARY)
CT5807/154
NT Extinguished
T835401A134
OH(OLARY)
CT5813/186
NT Extinguished
T835401A135
OH(OLARY)
CT5827/93
NT Extinguished
T835401A136
OH(OLARY)
CT6151/499
NT Extinguished
T835401A137
OH(OLARY)
CT5235/129
NT Extinguished
T835401A138
OH(OLARY)
CT5799/155
NT Extinguished
T835401A139
OH(OLARY)
CT6092/425
NT Extinguished
T835401A140
OH(OLARY)
CT5810/987
NT Extinguished
T835401A142
OH(OLARY)
CT5595/305
NT Extinguished
T835401A144
OH(OLARY)
CT5825/675
NT Extinguished
T835401A146
OH(OLARY)
CT5799/313
NT Extinguished
T835401A148
OH(OLARY)
CT5595/305
NT Extinguished
T835401A15
OH(OLARY)
CT6035/853
NT Extinguished
T835401A150
OH(OLARY)
CT5517/410
NT Extinguished
T835401A152
OH(OLARY)
CT5799/313
NT Extinguished
T835401A160
OH(OLARY)
CT5517/415
NT Extinguished
T835401A162
OH(OLARY)
CT5825/674
NT Extinguished
T835401A163
OH(OLARY)
CT5790/14
NT Extinguished
T835401A164
OH(OLARY)
CT5517/417
NT Extinguished
T835401A165
OH(OLARY)
CT510/42
NT Extinguished
T835401A166
OH(OLARY)
CT507/154
NT Extinguished
T835401A167
OH(OLARY)
CT5565/756
NT Extinguished
T835401A168
OH(OLARY)
CT5798/229
NT Extinguished
T835401A169
OH(OLARY)
CT5837/421
NT Extinguished
T835401A17
OH(OLARY)
CT5839/529
NT Extinguished
T835401A170
OH(OLARY)
CT5517/411
NT Extinguished
T835401A172
OH(OLARY)
CT5566/981
NT Extinguished
T835401A174
OH(OLARY)
CT5825/674
NT Extinguished
T835401A175
OH(OLARY)
CT5837/421
NT Extinguished
T835401A18
OH(OLARY)
CT5810/490
NT Extinguished
T835401A19
OH(OLARY)
CT5788/844
NT Extinguished
T835401A2
OH(OLARY)
CT5846/201
NT Extinguished
T835401A20
OH(OLARY)
CT5790/16
NT Extinguished
T835401A21
OH(OLARY)
CT5798/690
NT Extinguished
T835401A22
OH(OLARY)
CT5837/76
NT Extinguished
T835401A23
OH(OLARY)
CT5797/396
NT Extinguished
T835401A24
OH(OLARY)
CT5846/201
NT Extinguished
T835401A26
OH(OLARY)
CT5799/313
NT Extinguished
T835401A28
OH(OLARY)
CT5797/396
NT Extinguished
T835401A29
OH(OLARY)
CT5835/597
NT Extinguished
T835401A3
OH(OLARY)
CT5785/588
NT Extinguished
T835401A30
OH(OLARY)
CT5786/729
NT Extinguished
T835401A31
OH(OLARY)
CT5835/597
NT Extinguished
T835401A32
OH(OLARY)
CT5580/734
NT Extinguished
T835401A33
OH(OLARY)
CT5810/488
NT Extinguished
T835401A34
OH(OLARY)
CT5839/529
NT Extinguished
T835401A38
OH(OLARY)
CT5493/507
NT Extinguished
T835401A39
OH(OLARY)
CT5785/520
NT Extinguished
T835401A4
OH(OLARY)
CT5785/588
NT Extinguished
T835401A44
OH(OLARY)
CT5814/931
NT Extinguished
T835401A45
OH(OLARY)
CT5840/975
NT Extinguished
T835401A46
OH(OLARY)
CT5790/11
NT Extinguished
T835401A47
OH(OLARY)
CT5840/975
NT Extinguished
T835401A48
OH(OLARY)
CT5810/988
NT Extinguished
T835401A49
OH(OLARY)
CT5841/442
NT Extinguished
T835401A5
OH(OLARY)
CT5871/398
NT Extinguished
T835401A50
OH(OLARY)
CT5840/975
NT Extinguished
T835401A51
OH(OLARY)
CT5843/45
NT Extinguished
T835401A52
OH(OLARY)
CT5838/499
NT Extinguished
T835401A53
OH(OLARY)
CT5835/158
NT Extinguished
T835401A54
OH(OLARY)
CT5799/313
NT Extinguished
T835401A56
OH(OLARY)
CT5788/844
NT Extinguished
T835401A57
OH(OLARY)
CT5808/512
NT Extinguished
T835401A58
OH(OLARY)
CT5799/313
NT Extinguished
T835401A59
OH(OLARY)
CT5661/713
NT Extinguished
T835401A6
OH(OLARY)
CT5846/201
NT Extinguished
T835401A60
OH(OLARY)
CT5517/220
NT Extinguished
T835401A61
OH(OLARY)
CT5583/562
NT Extinguished
T835401A62
OH(OLARY)
CT5812/543
NT Extinguished
T835401A63
OH(OLARY)
CT5789/428
NT Extinguished
T835401A64
OH(OLARY)
CT5813/536
NT Extinguished
T835401A65
OH(OLARY)
CT5789/427
NT Extinguished
T835401A66
OH(OLARY)
CT5825/190
NT Extinguished
T835401A67
OH(OLARY)
CT5476/96
NT Extinguished
T835401A68
OH(OLARY)
CT5476/97
NT Extinguished
T835401A69
OH(OLARY)
CT5798/511
NT Extinguished
T835401A7
OH(OLARY)
CT5487/330
NT Extinguished
T835401A70
OH(OLARY)
CT5798/228
NT Extinguished
T835401A71
OH(OLARY)
CT5835/597
NT Extinguished
T835401A72
OH(OLARY)
CT5813/539
NT Extinguished
T835401A73
OH(OLARY)
CT5799/312
NT Extinguished
T835401A75
OH(OLARY)
CT5790/16
NT Extinguished
T835401A76
OH(OLARY)
CT5517/408
NT Extinguished
T835401A77
OH(OLARY)
CT507/137
NT Extinguished
T835401A79
OH(OLARY)
CT5781/700
NT Extinguished
T835401A8
OH(OLARY)
CT5529/578
NT Extinguished
T835401A80
OH(OLARY)
CT507/154
NT Extinguished
T835401A81
OH(OLARY)
CT5781/700
NT Extinguished
T835401A82
OH(OLARY)
CT5819/344
NT Extinguished
T835401A83
OH(OLARY)
CT5819/344
NT Extinguished
T835401A84
OH(OLARY)
CT5476/98
NT Extinguished
T835401A85
OH(OLARY)
CT5789/426
NT Extinguished
T835401A87
OH(OLARY)
CT5818/14
NT Extinguished
T835401A88
OH(OLARY)
CT5517/407
NT Extinguished
T835401A89
OH(OLARY)
CT5808/511
NT Extinguished
T835401A90
OH(OLARY)
CT5812/543
NT Extinguished
T835401A91
OH(OLARY)
CT5971/152
NT Extinguished
T835401A92
OH(OLARY)
CT5971/152
NT Extinguished
T835401A93
OH(OLARY)
CT5808/510
NT Extinguished
T835401A94
OH(OLARY)
CT5517/409
NT Extinguished
T835403A12
OH(OLARY)
CT5833/453
NT Extinguished
T835403A13
OH(OLARY)
CR5769/218
NT Extinguished
T835403A14
OH(OLARY)
CR5769/219
NT Extinguished
T835403A15
OH(OLARY)
CR5769/220
NT Extinguished
T835403A16
OH(OLARY)
NT Extinguished
T835403A17
OH(OLARY)
NT Extinguished
T835403A18
OH(OLARY)
NT Extinguished
T835403A21
OH(OLARY)
NT Extinguished
T835403A23
OH(OLARY)
NT Extinguished
T835405A15
OH(OLARY)
CT5833/787
NT Extinguished
T835405A20
OH(OLARY)
CT5833/787
NT Extinguished
T835405A21
OH(OLARY)
CR5750/446
NT Extinguished
T835405A24
OH(OLARY)
CT5833/787
NT Extinguished
T835405A30
OH(OLARY)
CT5467/235
NT Extinguished
T835405A31
OH(OLARY)
CT5467/235
NT Extinguished
T835405A53
OH(OLARY)
CR5750/447
NT Extinguished
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
Ratio Decidendi
Legal Principle Established
Section 87 of the NTA permits the Court to make a determination of native title consistent with a written agreement between the parties to a proceeding without holding a hearing if it is satisfied of a number of matters, which include: (a)whether the notice period under s 66 of the NTA has ended; (b)that the parties have reached agreement on the terms of order relating to the whole of the proceedings, a part of the proceedings or a matter arising out of the proceedings; (c)the terms of the agreement have been reduced to writing, signed by and on behalf of the parties and filed with the Court; and (d)the Court is satisfied that an order in, or consistent, with those orders would be within the power of the Court. Consideration I am satisfied that the preconditions to the exercise of the power under s 87 are met. First, I am satisfied that the notification requirements prescribed by s 66 of the NTA have been met. The Native Title Registrar was required to undertake a notification process in accordance with s 66 of the NTA (as applicable at the time). As part of this notification process, the Registrar was required to provide a copy of the application to the relevant State Minister (s 66(2)), and to other appropriate representative bodies (s 66(2A)), as well as to give notice to persons or bodies specified under s 66(3)(a), and to notify the public (s 66(3)(d)). The relevant notice for which each of those persons must be informed must include certain statements depending on the nature of the application. In this case, given it is a claimant application, the notice must state that, given there can only be one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Court, in making its determination, to take into account the person’s native title rights and interests in relation to the relevant area (s 66(10)(b)). In addition, a person who wants to become a party to the application must notify the Court in writing within three months of the notification day or, after that time, seek leave from the Court to become a party (s 66(10)(c)). On 13 June 2012, the Native Title Registrar wrote to the Court and confirmed that the Registrar had given notice containing details of the application to the persons and bodies specified in s 66(3)(a) of the NTA. The Registrar also confirmed that they had notified the public of the application in accordance with s 66(3)(d) of the NTA. In accordance with s 66(3)(b), the correspondence from the Registrar enclosed a copy of the notice provided to the persons and bodies specified in subs (3)(a), as well as the public notice specified in subs (3)(d). Both notices specified that any person or entity who wished to become a party to the application was required to apply to the Court to become a party by 26 September 2012 (as specified in s 66(10)(c)). In addition, both notices contained the statement specified in s 66(10)(b). On 8 October 2012, following the closure of the notification period, the Court wrote to the applicants’ then-solicitors providing them with a party list.