Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4)

[2021] FCA 1620

FEDERAL COURT OF AUSTRALIA

Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620

File number:

SAD 38 of 2013

Judgment of:

WHITE J

Date of judgment:

21 December 2021

Catchwords:

NATIVE TITLE – overlapping applications for the determination of native title over Oodnadatta and the surrounding Oodnadatta Common – claimant groups or sub‑groups had determinations of native title over the areas adjacent to the Overlap Area – acceptance that by reason of their acknowledgement and observance of their respective traditional laws and customs, each claimant possesses native title rights and interests in the respective adjacent areas – whether the Arabana had, by reason of their continued acknowledgment and observance of their traditional laws and customs, continued to have native title rights and interests in the Overlap Area – whether the Walka Wani had at effective sovereignty native title rights and interests in the Overlap Area – consideration of distinction between “ownership” and “use rights” – whether s 47A applied to certain allotments in the township so that extinguishment could be disregarded.

Held: Arabana application dismissed and Walka Wani claim granted.   

Legislation:

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Federal Court of Australia Act 1976 (Cth) s 37AG

Native Title Act 1993 (Cth) ss 13, 23B, 47, 47A, 47B, 67, 223, 225, 238, 251D, 253

Racial Discrimination Act 1975 (Cth)

Aboriginal Land Trust Act 1977 (SA)

Associations Incorporation Act 1985 (SA)

Cases cited:

AB (decased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268

Ah‑Chee v Stuart [2019] FCAFC 165

Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345

Badimia People v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466

Banjima People v State of Western Australia (No 2) [2013] FCA 868; (2013) 205 ALR 1

Banjima People v State of Western Australia [2015] FCAFC 84; (2015) 231 FCR 456

Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84

CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204

Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; (2015) 325 ALR 213

De Rose v State of South Australia [2002] FCA 1342

Dodd v State of South Australia [2012] FCA 519

Drury on behalf of the Nanda People v Western Australia [2020] FCAFC 69; (2020) 276 FCR 203

Erubam Le v State of Queensland [2003] FCAFC 227; (2003) 134 FCR 155

Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96

Fortescue Metals Group v Warrie on behalf of the Yindjbarndi People [2019] FCAFC 177; (2019) 273 FCR 350

Gudjala People #2 v Native Title Registrar [2007] FCA 1167

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

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

King on behalf of the Eringa Native Title Claim Group v South Australia [2011] FCA 1386

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899

Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238; (2018) 265 FCR 68

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422

Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148

Narrier v State of Western Australia [2016] FCA 1519

Northern Territory of Australia v Alyawarr [2005] FCAFC 135; (2005) 145 FCR 442

Pareroultja v Tickner (1993) 42 FCR 32

R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327

Risk v Northern Territory of Australia [2006] FCA 404

Rrumburriya Borroloola v Northern Territory [2016] FCA 776

Sampi v Western Australia [2005] FCA 777

Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; (2018) 261 FCR 183

Stuart v State of South Australia (No 3) [2021] FCA 230

Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 2) [2021] FCA 194

Stuart v State of South Australia (Oodnadatta Overlap Proceeding) [2019] FCA 1282

The Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1

The State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1

Western Australia v Graham (on behalf of the Ngadju People) [2013] FCAFC 143; (2013) 305 ALR 452

Wyman on behalf of the Bidjara People v Queensland [2014] FCA 528

Wyman v Queensland [2015] FCAFC 108; (2015) 235 FCR 464

Yankunytjatjara/Antakarinja Native Title Claim Group v South Australia [2006] FCA 1142

Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351

Division:

General Division

Registry:

South Australia

National Practice Area:

Native Title

Number of paragraphs:

1053

Date of hearing:

30 September, 1‑3, 8-11, 14-18 and 21-25 October 2019, 19-23 October 2020 and 11 and 12 March 2021

Counsel for the First Applicant:

Mr A Collett with Ms A Sibree

Solicitor for the First Applicant:

Camatta Lempens

Counsel for the Second and Third Applicants:

Ms T Jowett with Mr C Gregory (30 September, and 1-3, 8‑11 and 14‑18 October 2019
Mr V Hughston SC with Ms T Jowett (21‑25 October 2019, 19‑23 October 2020 and 11 and 12 March 2021)

Solicitor for the Second and Third Applicants:

South Australian Native Title Services

Counsel for the First Respondent:

Mr T Golding with Mr W Ambrose (30 September, 1‑3, 8‑11, 14‑18 and 21-25 October 2019 and 19-23 October 2020)
Mr W Ambrose with Mr P Tonkin (11 and 12 March 2021)

Solicitor for the First Respondent:

Crown Solicitor’s Office

Counsel for the Respondents:

The remaining Respondents did not appear

Table of Corrections
23 December 2021	In the Cases cited on the cover page, the authority “Bodney v Benell” has been amended to “Bodney v Bennell”.
23 December 2021	In the Appearances on the cover page in the field Counsel for the Second and Third Applicant the words “Mr T Jowett” have been amended to “Ms T Jowett”.
23 December 2021	In [123], the authority “Bodney v Bennett” has been amended to “Bodney v Bennell”.
23 December 2021	In [1043], the last row in Tenure Table 6 has been deleted.

ORDERS

SAD 38 of 2013

BETWEEN:

OODNADATTA COMMON OVERLAP PROCEEDING

AARON STUART (and others named in the Schedule)
(Arabana No 2 Native Title Claim (Part 2) (SAD38/2013))

First Applicant

DEAN AH CHEE (and others named in the Schedule)
(Walka Wani Oodnadatta Native Title Claim (SAD78/2013))

Second Applicant

AUDREY STEWART (and another named in the Schedule)
(Walka Wani Oodnadatta #2 Native Title Claim (SAD220/2018))

Third Applicant

AND:

STATE OF SOUTH AUSTRALIA (and others named in the Schedule)

Respondent

ORDER MADE BY:	WHITE J
DATE OF ORDER:	21 DECEMBER 2021

THE COURT ORDERS THAT:

1.The application by Aaron Stuart and others in Action SAD38/2013 be dismissed.

2.The parties in Action Nos SAD78/2013 and SAD220/2018 confer with a view to providing the Court with minutes of the orders to be made to give effect to these reasons.

3.The matter be adjourned to a date and time to be fixed for the making of orders.

4.The interlocutory application of Nappamurra Pty Ltd filed on 24 December 2020 is adjourned to the same date and time.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHITE J:

Introduction	[1]
The determinations of native title in the surrounding areas	[15]
Further description of the Overlap Area	[20]
The Arabana Part 2 Application	[28]
The Walka Wani Applications	[33]
The history of the claims	[42]
Statutory provisions and principles	[47]
The effect of the determinations in the adjacent areas	[54]
A summary of the parties’ contentions	[57]
Boundaries and shared areas	[62]
The time of effective sovereignty	[64]
Some further history	[82]
The expert evidence	[86]
Gender restricted evidence	[95]
The three societies	[100]
The Arabana	[101]
The (eastern) Western Desert people	[111]
The Lower Southern Arrernte	[114]
Proof of connection	[121]
The early ethnographical-historical material	[125]
Christopher Giles: 1875	[126]
James Lewis and FW Andrews: 1874-1875	[128]
Hermann Kempe: 1876	[129]
Georg Heidenreich: May 1876	[131]
JD Woods: 1878	[135]
Robert Hogarth: 1884-5	[140]
JF Gillen and PE Warburton: 1886	[148]
Belt: 1886	[152]
Joseph East: 1889	[153]
Hermann Kempe: 1890	[161]
Alfred William Howitt: 1891-1904	[163]
Patrick Byrne: 1892	[176]
Edward Stirling: 1894	[182]
Richard Helms: 1896	[189]
Otto Siebert: 1898	[191]
Lady Tennyson: 1899	[200]
Spencer and Gillen: 1899	[204]
Tom Hogarth: 1898-9	[232]
Robert Hamilton Mathews: 1898-1908	[241]
AM Helling: 1899	[254]
Summary of the early ethnographical-historical material	[259]
Early 20th Century ethnographic-historical material	[262]
Erhard Eylmann: 1908 (Sackett [148])	[262]
Carl Strehlow: 1910	[263]
Wilhelm Schmidt: 1919	[269]
Dr Herbert Basedow: 1920	[277]
AP Elkin: 1931-1940	[286]
F Fenner: 1936	[312]
Ronald and Catherine Berndt: 1939	[314]
Later 20th Century sources	[318]
TGH Strehlow: 1947 and 1971	[318]
Norman Tindale: 1940 and 1974	[325]
Luise Hercus: 1971-2018	[332]
Paul Reader: 1981/82	[353]
Daniel Vachon and Kym Doohan: 1986	[357]
Isabel McBryde: 1987	[359]
Bruce Shaw and Jen Gibson: 1987	[361]
Finke River Land Claim: 1989-1990	[366]
Melissa Nursey-Bray: 2013	[369]
The reliability of the works of TGH Strehlow and Dr Hercus	[371]
The utility of the early maps	[377]
Robert Hogarth	[381]
Otto Siebert (1898)	[388]
JG Reuther (1890s)	[391]
Carl Strehlow (1910)	[394]
RH Mathews (1900)	[399]
Schmidt (1919)	[403]
Other matters	[405]
Conclusion on the ethnographic-historical material	[409]
The linguistic evidence	[415]
Overview	[428]
Matters of agreement	[439]
Matters concerning the location of Western Desert language (e.g, Antakarinja and Yankunytjatjara)	[442]
Matters relating to the location of LSA language	[458]
Matters relating to the location of the Arabana language	[459]
Disagreement about matters of approach	[460]
The data obtained close to effective sovereignty	[478]
The Lindsay expedition	[481]
RH Mathews (1898)	[487]
Hercus and Sutton (1985)	[491]
The further contemporary data identified by Dr Black	[497]
The Arrernte origin of the name “Oodnadatta”	[512]
Other possible Arrernte names in the Overlap Area	[519]
Place names south of the Overlap Area	[522]
Place names north of the Overlap Area	[526]
Other matters	[531]
Conclusion	[537]
Migration into and out of the Overlap Area	[538]
The Arabana lay evidence	[581]
Aaron Stuart	[582]
Sydney Strangways	[603]
Dr Veronica Arbon	[623]
Joanne Warren	[628]
Leonie Warren	[640]
Reginald Dodd	[648]
Greg Warren	[655]
Summary	[658]
Other Arabana People	[661]
The Walka Wani critique of the Arabana presence	[662]
The Walka Wani witnesses	[668]
Custodianship	[680]
The 1996 Map	[698]
Findings as to the marking of the 1996 Map	[701]
A Jones v Dunkel inference?	[729]
Discussion of the 1996 Map at Oodnadatta in March 1997	[738]
Conclusion regarding the 1996 Map	[741]
The anthropological evidence	[745]
Matters of agreement and difference	[745]
The Cane/Liebelt report of 22 March 2019	[752]
Lucas and Sackett	[772]
Graham and Liebelt	[782]
The Graham male gender restricted evidence	[787]
Assessment of the anthropological evidence	[794]
Other sources	[796]
Matters recorded by Shaw and Gibson in the Oodnadatta Aboriginal Heritage Survey Final Report (1987)	[796]
Douglas Walker (born 1953 in Alice Springs)	[797]
Ruth McKenzie (Lower Southern Arrernte)	[797]
Paddy Jones (Yankunytjatjara)	[797]
Tommy O’Donaghue (Yankunytjatjara)	[797]
Brian Marks (a senior Arabana man)	[797]
Arthur Warren	[797]
Angus Warren (Arabana elder)	[797]
Dr Stephen Davis: January 1993	[802]
Yumpy Jack: 1900	[804]
Brownie Doolan: 2004	[805]
Molly Lennon (1989)	[811]
Yundu Spider	[812]
Gavin Breen	[813]
Mythology	[815]
The Arabana evidence	[815]
The Yaltya (Frog) Ularaka	[816]
The Night Owls Ularaka	[817]
The Anintoyla (rain maker) Ularaka	[818]
The Kangaroo Story	[819]
The Two Snakes Ularaka	[820]
The Turkey Ularaka	[821]
The Emu Ularaka	[822]
Some general matters relating to the Arabana mythology evidence	[823]
The Walka Wani mythology	[829]
The Walka Wani evidence	[829]
Frog (Ararrkern)	[830]
Rain (Anintjola)	[831]
Snake (Apma)	[832]
Fire (Ura/Waru)	[833]
Native Cat (Urumbulla)	[834]
Woman’s head (Arrkwety-Akapert)	[835]
Goanna (Wati Milpati/Tinka) and Red Ochre ceremony party	[836]
Mythology - general	[839]
Assessment of the Arabana claim	[842]
Have the Arabana maintained connection with the Overlap Area in accordance with the traditional laws acknowledged and traditional customs observed by them?	[844]
Relevant principles	[847]
Some initial matters	[848]
The matters relied upon by the Arabana	[852]
(i) The matters established for the 2012 Arabana Determination;	[853]
(ii) The continuity of Arabana people living in Oodnadatta	[855]
(iii) Continued use of the natural resources in the Overlap Area	[865]
(iv) Continuity of learning, respecting and teaching the Ularaka	[872]
(v) Protection of Ularaka sites	[877]
The appointment of custodians	[878]
Holding ceremonies at the Ularaka sites	[882]
Site inspections and monitoring	[883]
Dissemination and teaching of appropriate site information and keeping other site information confidential	[888]
Fencing and signage at Hookey’s Hole	[889]
Arabana claimant involvement in site clearance work	[890]
Arabana claimant involvement in negotiations over protection of the Common	[891]
(vi) Continued acknowledgement and observance of other traditional laws and customs in the Overlap Area	[893]
(vii) Continuing internal and external assertion of traditional relationships to the Overlap Area	[897]
The teaching of Arabana children that that Oodnadatta is part of Arabana country	[900]
Public self-identification by Arabana People as Arabana	[901]
(viii) Knowledge of the boundaries of Arabana country	[903]
(ix) Continuity of involvement in ceremonial life	[904]
(x) Continuity of Arabana Peoples’ social connections with Oodnadatta	[905]
General	[907]
Conclusion	[916]
Assessment of the claim of the Walka Wani	[917]
Two initial matters	[918]
The rights and interests claimed by the Walka Wani	[923]
Rights of Western Deseert people at sovereignty	[930]
Relevant principles	[935]
“Use rights” and “core rights”	[942]
Nguraritjas and traditional owners	[949]
Evaluation	[965]
The manner in which the Walka Wani claims were made	[980]
Tenure	[987]
Introduction	[987]
Native title agreed	[988]
Extinguishment agreed	[990]
Section 47A	[995]
Lot F17270A1 - public works	[1002]
Health and welfare services	[1014]
Occupation - principles	[1026]
The UAM allotments	[1028]
Assessment of occupation	[1030]
Non-exclusive native title	[1049]
Conclusion on Tenure	[1050]
Disposition	[1052]

Introduction

1. This judgment concerns overlapping applications for the determination of native title over the town of Oodnadatta in the far north of South Australia and surrounding areas including the stock reserve known as the Oodnadatta Common.  Oodnadatta is approximately 160 km south of the border between South Australia and the Northern Territory.

2. There are three applications. The Arabana People filed an application on 1 March 2013 (the Arabana No 2 Application) (SAD38/2013). By that application, the Arabana seek a determination of native title over two separate areas, identified as Part 1 and Part 2 respectively. The Part 1 area is near Marree. A determination of native title has been made by consent over the Part 1 area (Stuart v State of South Australia (No 3) [2021] FCA 230). The part of the Arabana No 2 Application which concerns Oodnadatta is known as “Arabana No 2 (Part 2)” but, for the most part, I will refer to it in these reasons as the “Arabana Claim”.

3. The area which is the subject of the Arabana Claim is bounded by the black lines in Map 1.

   Map 1: Area of the Arabana No 2 (Part 2) Application

4. As is apparent, the Claim Area is relatively small, comprising less than 150 km².  Its east‑west length at its longest point is approximately 25 km and its north‑south length (ignoring the “protrusion” on the southern boundary) is approximately 7.2 km.  The Claim Area comprises the township of Oodnadatta Common, the airport and an area held by the Aboriginal Land Trust (the ALT) established under the Aboriginal Land Trust Act 1966 (SA). 

5. The Walka Wani People, who are comprised of Lower Southern Arrernte and Yankunytjatjara/Luritja People, have filed two applications.  The first (SAD78/2013) was filed on 12 April 2013 and sought a determination of native title in respect of only part of the area claimed by the Arabana.  The second (SAD220/2018) application was filed over five years later, on 14 September 2018, and seeks a determination of native title over the remaining portion of the area claimed by the Arabana.  The two applications of the Walka Wani are known as Walka Wani No 1 and Walka Wani No 2.  In combination, the areas which are the subject of Walka Wani No 1 and Walka Wani No 2 overlap exactly the area of the Arabana Claim.  The inter‑relationship between the areas which are the subject of the two Walka Wani applications is shown in Map 2 below.

   Map 2: The Claim Areas of the Walka Wani No 1 and No 2 applications
   

6. The darker shaded area is the area which is the subject of the Walka Wani No 1 application. 

7. The evidence presented, and the submissions made, in relation to the Walka Wani applications did not distinguish between the areas which are the subject of Walka Wani No 1 and Walka Wani No 2.  In particular, there was no suggestion that the Walka Wani could succeed on one application and not on another.

8. In these reasons, I will refer to the area in respect of which the overlapping claims are made as “the Overlap Area”.

9. There are several respects in which contested overlapping claims for the determination of native title are unfortunate.  Amongst other things, the defence by each claim group of the claim of the other can result in a form of mutual destruction of the respective claims. This is especially so in a case like the present in which the primary cases presented by the applicants are mutually exclusive.  Putting to one side an amendment by the Walka Wani which they did not ultimately pursue, neither the Arabana nor the Walka Wani seek any form of joint determination or any recognition of shared native title rights and interests (NTRI).  As the State noted, several of the witnesses went to some lengths to disavow any possibility of members of the other claimant group having traditional rights and interests in the Overlap Area.  Competing claims also result in divisions and tensions between Aboriginal Peoples who have hitherto lived peaceably together.  That was recognised during the trial as several witnesses referred with regret to the tensions which the claims for native title have generated.  One witness noted that the competing claims have “turned families against families”. 

1. Because of the potential for consequences of these kinds, and because of the desirability of a negotiated outcome if at all possible, the Court ordered two mediations by Registrars of the claims to the Overlap Area.  These were conducted between 13‑16 July 2015 in Coober Pedy and on 18 September 2018 in Port Augusta.  Neither resulted in a mediated outcome and the parties’ positions seemed intractable.

2. On 26 September 2018, the Court ordered, pursuant to s 67 of the Native Title Act 1993 (Cth) (the NT Act), that the Arabana No 2 (Part 2) native title claim, the Walka Wani No 1 Application and the Walka Wani No 2 Application be dealt with in the one proceeding to be known as the “Oodnadatta Common Overlap Proceeding” (in these reasons, “the Overlap Proceeding”). The Arabana People are the first applicant in the Overlap Proceeding, the applicant in Walka Wani No 1 are the second, and the applicant in Walka Wani No 2 are the third. Unless it is necessary to distinguish between them, I will refer to the second and third applicants as “the Walka Wani Applicants” or, more simply, as “the Walka Wani”.

3. Apart from the State of South Australia, there are two other respondents to the Arabana Claim.  They are Airservices Australia which has an interest in the Oodnadatta Airport (which is within the Overlap Area) and Mr Douglas Lillecrapp, who holds the pastoral lease of Todmorden Station (immediately to the west and north of the Overlap Area).  Neither Airservices Australia nor Mr Lillecrapp took any part in the trial, although Mr Lillecrapp did attend the first day of the hearings in Oodnadatta.

4. The trial commenced with on‑country hearings between 30 September and 3 October 2019 at Oodnadatta and between 8 and 11 October 2019 in Alice Springs.  It continued in Adelaide between 14 and 23 October 2019.  The trial was then adjourned to 6 April 2020 for the purpose of hearing the expert evidence in a concurrent session.  However, the restrictions caused by the COVID‑19 pandemic prevented the trial from resuming at that time.  The expert evidence was heard between 19 and 23 October 2020 and the parties made their finals submissions on 11 and 12 March 2021. 

5. Shortly before the Court was to hear the final submissions, Nappamurra Pty Ltd, which holds the pastoral lease of Allandale Station (immediately to the south and east of the Overlap Area), applied for leave to intervene.  Having regard in particular to the prejudice which the late intervention would cause the parties, I refused to permit the intervention before the final submissions were made, and adjourned Nappamurra’s application for further consideration after the Court had published its findings on the overlapping claims: Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 2) [2021] FCA 194.

   The determinations of native title in the surrounding areas

6. The whole of the Overlap Area is bounded by areas in respect of which determinations of native title have already been made.

7. On 28 August 2006, at Marla, the Court made a determination in respect of a large area abutting the Overlap Area on its northern and western boundaries: Yankunytjatjara/Antakarinja Native Title Claim Group v South Australia [2006] FCA 1142 (the 2006 Yankunytjatjara/Antakarinja Determination). With the exception of areas of extinguishment, this Determination recognised the native title of the Yankunytjatjara/Antakarinja People.

8. On 22 May 2012, at Finniss Springs Station, the Court made a determination in respect of a large area abutting the eastern and southern boundaries of the Overlap Area, which recognised, apart from areas of extinguishment, the native title of the Arabana People: Dodd v State of South Australia [2012] FCA 519 (the 2012 Arabana Determination).

9. The Court has also made determinations of native title in respect of areas further to the north of the 2006 Yankunytjatjara/Antakarinja and 2012 Arabana Determinations.  These determinations are King on behalf of the Eringa Native Title Claim Group v South Australia [2011] FCA 1386 (the Eringa No 1 Determination) which at its closest point is approximately 25 km north of the Overlap Area and 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 (the Eringa No 2 Determination) (together the Eringa Determinations). The areas which are the subject of the Eringa Determinations lie immediately to the north and east of the area which is the subject of the 2006 Yankunytjatjara/Antakarinja Determination. Their southern boundaries abut the northern boundary of the 2012 Arabana Determination. The Eringa No 1 Determination recognises the native title rights and interests (NTRI) of members of the Lower Southern Arrernte (LSA) and Yankunytjatjara Peoples. The Eringa No 2 Determination recognises the NTRI of the LSA, the Luritja/Yankunytjatjara and the Wangkangurru Peoples.

10. The location of the Overlap Area in relation to the areas which have been subject to previous determinations is shown in Map 3.

    Map 3: Interrelationship of Overlap Area with the surrounding Determinations

    Further description of the Overlap Area

11. Oodnadatta is over 100 km in a west‑north‑west direction from Lake Eyre at its closest point (the north‑western boundary of Lake Eyre).

12. The Neales River, which has its headwaters well to the west of Oodnadatta, runs in a generally west‑east direction and flows into Lake Eyre.  The river was named “The Neales” on 6 June 1859 by John McDouall Stuart after JB Neale, who was then a member of the Legislative Assembly in South Australia.  A little to the west of Oodnadatta, the Neales River turns to run in a general north‑south direction so that, west of Oodnadatta, it intersects the Oodnadatta Common on a general north‑south axis. 

13. A waterhole, known as Hookey’s Hole or Uthapuka in Arabana, on the Neales River is immediately south of (i.e, outside of) the Overlap Area and within the area of the 2012 Arabana Determination.  Hookey’s Hole is an important feature because, except in periods of drought, it has been a permanent source of water. 

14. Mt O’Halloran, given that name by John McDouall Stuart on 7 June 1859, is approximately 5 km north of Oodnadatta (within but close to the northern border of the Overlap Area).  Its traditional name is Arkwety‑Akaparta.

15. The Macumba River, which is further to the north of Oodnadatta, runs in a general west‑east direction to Lake Eyre.  It has two principal tributaries: the Alberga which also runs in a general west‑east direction, and the Stevenson which runs in a general north‑south direction.  The Macumba commences at the confluence of the Alberga and the Stevenson, which confluence is only slightly east of due north of Oodnadatta, with the consequence that the Macumba is north of the eastern portion of the Overlap Area.  The Alberga River is north of the remaining portion of the Overlap Area.  From Lasso Water Hole to Lake Eyre, the Macumba is the boundary between the areas encompassed by the Eringa Determinations and the area of the 2012 Arabana Determination.  The Macumba is approximately 45-50 kms from Oodnadatta.  Some evidence suggested that, at its closest, that distance may be approximately 45 km.

16. Two Pastoral Leases are adjacent to (and abut) the Overlap Area: Todmorden Station to the north and west and Allandale Station to the south and east.  The Peake Station (which now forms part of another Station and which was the subject of several references in the evidence) was located further to the south‑east, being between Allandale Station and Lake Eyre. 

17. Macumba Station, which has also been absorbed into a larger pastoral lease, was established in 1883 and was located to the north of Oodnadatta in the region of the Macumba River.

18. As will be seen, the Overlap Area is at the approximate boundaries of the lands of the Arabana People, the Southern Arrernte and those of the Western Desert Bloc.  The evidence indicates that, by the late 19^th Century, Oodnadatta had become the meeting point for a number of different Aboriginal Peoples.

    The Arabana Part 2 Application

19. The Arabana Claim is brought by Aaron Stuart, Joanne Warren, Peter Watts, Greg Warren (Snr) and another person now deceased. 

20. The description of the native title claim group in the Arabana Claim is as follows:

    The Native Title Claim Group comprises those Aboriginal People who both self-identify as Arabana and are recognised as being Arabana by other Arabana People based on:

    Ÿfiliation, including by adoption, from an Arabana parent or grandparent; or

    Ÿlong term co-residence with Arabana People on Arabana country;

    and who satisfy one or more of the following criteria:

    ŸBeing raised in Arabana country and being bound by its system of law and customs;

    ŸLiving and behaving appropriately with Arabana People in accordance with Arabana laws and customs;

    ŸHaving knowledge of Arabana country and its stories and taking appropriate responsibility, under Arabana custom and law, for that knowledge;

    ŸHaving knowledge of Arabana society and the relationships with people within it and seeking to maintain proper relationships among Arabana People;

    ŸHaving knowledge of Arabana language;

    ŸDisplaying an active interest and engagement in Arabana affairs.

    (Emphasis added)

21. This description is identical with the description of the Arabana People recognised in the 2012 Arabana Determination as holding native title.  It was common ground that the Arabana are part of the Lakes Cultural Group.  Other peoples who are part of the Lakes Cultural Group are the Pilatapa, Warlpiri, the Dieri and the Kuyani.  Lakes People have a matrilineal moiety system pursuant to which persons inherit from their mothers their “mardu” totem.

22. The NTRI claimed by the Arabana are described in Schedule E to the application:

    1.The nature and extent of the native title rights claimed and interests in relation to the Claim Area are non‑exclusive rights to use and enjoy in accordance with the native title holders’ traditional laws and customs the land and waters of the Claim Area, being:

    (a)       the right to access and move about the Claim Area;

    (b)the right to live, to camp and, for the purpose of exercising their native title rights and interests, to erect shelters and other structures on the Claim Area;

    (c)the right to hunt and fish on the land and waters of the Claim Area;

    (d)the right to gather and use the natural resources of the Claim Area, such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers, but excluding those resources referred to in Paragraph 12;

    (e)the right to share and exchange the subsistence and other traditional resources of the Claim Area;

    (f)the right to use the natural water resources of the Claim Area;

    (g)the right to cook on the Claim Area and to light fires for domestic purposes but not for the clearance of vegetation;

    (h)the right to engage and participate in cultural activities on the Claim Area including those relating to births and deaths;

    (i)the right to conduct ceremonies and hold meetings on the Claim Area;

    (j)the right to teach on the Claim Area the physical and spiritual attributes of locations and sites within the Claim Area;

    (k)the right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the Claim Area; and

    (l)the right to be accompanied on to the Claim Area by those people who, though not Native Title Holders, are:

    (i)spouses of native title holders, or

    (ii)people required by traditional law and custom for the performance of ceremonies or cultural activities on the Claim Area; or

    (iii)people who have rights in relation to the Claim area according to the traditional laws and customs acknowledged by the native title holders.

    The native title rights and interest claimed are also subject to the effect of:-

    (a) all existing non native title rights and interests;

    (b)all laws of South Australia and the Commonwealth of Australia;

    (c)valid interest conferred under those laws.

23. Other than in respects which are not presently material, the NTRI claimed in the Arabana application match those recognised in the 2012 Arabana Determination.

    The Walka Wani Applications

24. The Walka Wani No 1 application is brought by Dean Ah Chee, Huey Tjami and Christine Lennon.  The Walka Wani No 2 application is brought by Audrey Stewart and Dean Ah Chee.

25. The two Walka Wani applications identify the Walka Wani claim group in identical terms:

    The native title claim group comprises the native title holders pursuant to King on behalf of the Eringa Native Title Claim Group v State of South Australia (SAD6010/1998, SAD189/2010), who are:

    (a)All those Lower Southern Arrernte persons who have a traditional connection to the Claim Area, being all those described in Attachment A (1) who:

    i.        identify as Lower Southern Arrernte; and

    iiare recognised under the relevant traditional law and custom by other Native Title Holders as having rights and interests in the Claim Area; and

    (b)      All those Yankunytjatjara and/or Luritja persons who:

    ŸHave a spiritual connection to the Claim Area and the Tjukurpa associated with it because in the case of each of them:

    ŸThe Claim Area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or

    ŸHe or she has had a long term association with the Claim Area such that he or she has traditional geographical and religious knowledge of that country; or

    ŸHe or she has an affiliation to the Claim Area through grandparent with a connection to the Claim area as specified in sub-paragraph A or B above,

    including all those of those derived in Attachment A (2) who identify as Yankunytjatjara or Luritja; and

    ŸAre recognised under the relevant traditional law and custom by other Native Title Holders as having rights and interests in the Claim Area.

26. As is apparent, the Walka Wani People comprise two groups: the LSA and the Yankunytjatjara/Antakarinja.  It was common ground that the Arrernte People occupy a large area in Central Australia which extends north of Alice Springs and that they belong to the Arandic group of Aboriginal Peoples.  The Yankunytjatjara/Antakarinja/Luritja People are Western Desert People.  The name Antakarinja was used by the Arrernte People to refer to Yankunytjatjara, the people of the south, but over time can to be used by the Yankunytjatjara themselves.

27. The Attachments A to the two applications list separately in respect of the “Lower Southern Arrernte Descent Groups” and “Yankunytjatjara/Luritja Descent Groups” the descendants of named apical ancestors.  Seven of the apical ancestors are common to both Descent Groups.

28. The description of the native title claim group in each of the two Walka Wani applications matches the description of the group recognised in the Eringa No 1 Determination as having native title but differs from the description of the native title group in the Eringa No 2 Determination.

29. The description of the native title claim group in the Walka Wani applications does not match that of the native title holders in the 2006 Yankunytjatjara/Antakarinja Determination as those native title holders do not include the Lower Southern Arrernte.  The description in the latter Determination, is as follows:

    Under the relevant traditional laws and customs of the Western Desert Bloc, the native title holders comprise those Aboriginal People who have a spiritual connection to the Determination Area and the Tjukurpa associated with it because:

    (a)the Determination Area is his or her country of birth (also reckoned by the area where his or her mother lived during the pregnancy); or

    (b)he or she has had a long term association with the Determination Area such that he or she has traditional geographical and religious knowledge of that country; or

    (c)he or she has an affiliation to the Determination Area through a parent or grandparent with a connection to the Determination Area as specified in sub-paragraphs (a) or (b) above;

    and are recognised under the relevant Western Desert traditional laws and customs by other members of the native title claim group as having rights and interests in the Determination Area.

30. The NTRI claimed in the two Walka Wani applications are in substance identical:

    ŸOver areas where a claim to exclusive possession can be recognised (such as areas where there has been no prior extinguishment of native title or where section 238 and/or sections 47, 47A and 47B apply), members of the native title claim group claim the right to possess, occupy, use and enjoy the lands and waters of the application (the Application Area) as against the whole world, pursuant to their traditional laws and customs.

    ŸOver areas where a claim to exclusive possession cannot be recognised, the nature and extent of the native title rights and interests claimed in relation to the application area are the non-exclusive rights to use and enjoy the land and waters in accordance with traditional laws and customs being:

    ŸThe right to access and move about the Claim Area;

    ŸThe right to hunt and fish on the land and waters of the Claim Area without limitation of what purpose;

    ŸThe right to gather and use the natural resources of the Claim Area such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers;

    ŸThe right to share and exchange the subsistence and other traditional resources of the Claim Area;

    ŸThe right to use and take the natural water resources on the application area;

    ŸThe right to live, to camp and, for the purpose of exercising native title rights and interests, to erect shelters and other structures on the Claim Area;

    ŸThe right to cook on the Claim Area and to light fires for domestic purposes but not for the clearance of vegetation;

    ŸThe right to engage and participate in cultural activities on the Claim Area including those relating to births and deaths;

    ŸThe right to conduct ceremonies and hold meetings on the Claim Area;

    ŸThe right to teach on the Claim Area the physical and spiritual attributes of locations and sites within the Claim Area;

    ŸThe right to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the Claim Area;

    ŸThe right to be accompanied on to the Claim Area by those people who, though not members of the native title claim group, are:

    (i)spouses of Native Title Holders; or

    (ii)people required by traditional law and custom for the performance of ceremonies or cultural activities on the Claim Area; or

    (iii)people who have rights in relation to the claim area according to the traditional laws and customs acknowledged by the Native Title Holders; and

    ŸIn relation to Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders, the right to speak for country and make decisions about the use and enjoyment of the Claim Area by those Aboriginal persons.

    ŸThe rights described in paragraphs 2(b), (c), (d) and (e) are traditional rights exercised in order to satisfy personal, domestic, or communal needs.

    ŸThe native title rights and interests are subject to:

    ŸThe valid laws of the State of South Australia and the Commonwealth of Australia; and

    ŸThe rights (past or present) conferred upon persons pursuant to the laws of the Commonwealth and the laws of the State of South Australia; and

    ŸThe traditional laws and customs of the native title claim group.

1. The NTRI claimed by the Walka Wani differ from those recognised in the 2006 Yankunytjatjara/Antakarinja Determination in a number of respects:

   (a)the Walka Wani claim “exclusive possession” over all areas except those over which native title has been extinguished or to which s 238 and/or ss 47, 47A or 47B of the NT Act apply, whereas the rights recognised in the 2006 Yankunytjatjara/Antakarinja Determination were expressly stated not to be exclusive;

   (b)the Walka Wani claim the right to hunt and fish on the land and waters of the Overlap Area without any limitation of purpose;

   (c) the Walka Wani claim the right to “share and exchange the subsistence of other traditional resources of the Claim Area”; and

   (d)instead of claiming the right to light fires for domestic purposes (but not for the clearance of vegetation) on the Overlap Area, the Walka Wani claim the right to light fires “for all purposes” other than the clearance of vegetation. 

2. The NTRI recognised in the 2006 Yankunytjatjara/Antakarinja Determination and in each of the Eringa Determinations are in substance identical.  Accordingly, the Walka Wani are seeking in respect of the Overlap Area NTRI of greater extent than those recognised in each of those determinations.

   The history of the claims

3. The Arabana People first made a claim for land rights over a large area in the far north of South Australia by a writ filed in the High Court of Australia on 22 May 1993. That claim included the area of Oodnadatta and the Oodnadatta Common. It was discontinued on 31 August 1993 after the enactment of the NT Act.

4. In 1998, the Arabana commenced the application for a determination of native title which resulted in the 2012 Arabana Determination.  They did not include the Overlap Area in that claim because the State had previously indicated that it intended to transfer the Oodnadatta Common to the ALT with a view to the ALT then providing a long term lease of the Common to the Dunjiba Community Council, this being the Council comprised of the residents in Oodnadatta.  The Arabana recognised that, as many of the residents of Oodnadatta at the time were not Arabana, Dunjiba was more representative of its residents and they did not wish to create an impediment to the State transferring the land to the ALT.  However, the transfer to Dunjiba did not proceed.

5. Having obtained the 2012 Arabana Determination on 22 May 2012, the Arabana People then lodged the application for a determination of native title on 1 March 2013. 

6. As already noted, in the Walka Wani No 1 application filed on 12 April 2013, the Walka Wani sought a determination of native title over only part of the Overlap Area, being the town of Oodnadatta, the Oodnadatta Airport and the racecourse together with some land immediately surrounding those areas.  The second Walka Wani application which seeks a determination of native title over the balance of the Overlap Area was not made until 14 September 2018. 

7. As the Arabana noted, the Court has not been provided with any explanation for the Walka Wani not having earlier made a claim with respect to the Overlap Area, in particular, in the application leading to Eringa No 1 Determination in which the description of the native title claim group matches the description of the claim group in each of the two Walka Wani applications, or for the Walka Wani having initially claimed only part of the Overlap Area. They submitted that this circumstance supported the inference that the senior people who brought these applications had not considered Oodnadatta and its immediate surrounds to be the country of the Walka Wani.

   Statutory provisions and principles

8. The High Court has emphasised that a determination of native title is a creature of the NT Act, and not of the common law, so that the circumstances in which a determination may be made are defined by the NT Act: The Commonwealth of Australia v Yarmirr [2001] HCA 56, (2001) 208 CLR 1 at [7]; Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58, (2002) 214 CLR 422 (Yorta Yorta) at [32].

9. By s 13(1)(a) of the NT Act, applications may be made to this Court for “a determination of native title” in relation to an area for which there is no approved determination of native title. The expression “determination of native title” is defined in s 225 of the NT Act:

   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.

   (Emphasis in the original)

10. The term “native title rights and interests” used in s 225 is explained in s 223 of the NT Act:

    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.

11. Although the issues on the present applications principally concern matters of connection, it is appropriate to record matters concerning the application of ss 223(1) and 225 of the NT Act more generally, as they inform the Court’s resolution of those issues. Relevantly for present purposes, these include:

    (a)a determination of native title is a determination of the possession of rights and interests, and not of “ownership” or even “traditional ownership”. Section 223(1) does not use those terms. Section 253 of the NT Act does not define the term “right” but it does define the term “interest” in an expansive way, indicating that it is not confined to “ownership” according to conventional understandings of that term. As counsel for the Walka Wani noted, the NT Act does not use the concept of “traditional Aboriginal owner” adopted in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – see Risk v Northern Territory of Australia [2006] FCA 404 at [437] and Pareroultja v Tickner (1993) 42 FCR 32 at 42;

    (b)NTRI are not limited to rights and interests of the kind understood in the common law: Yarmirr at [12]. In The State of Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1 (WA v Ward), the plurality said:

    [95][R]ecognising that the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom are not to be understood as confined to the common lawyer's one‑dimensional view of property as control over access reveals that steps taken under the sovereign authority asserted at settlement may not affect every aspect of those rights and interests.  The metaphor of "bundle of rights" which is so often employed in this area is useful in two respects.  It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom.  Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.

    (c)nor are NTRI limited to rights capable of enforcement: Yarmirr at [16]. Regard should be had not only to the manner in which breaches of the rights or interests are addressed as a matter of traditional law, but also to the manner in which, as a matter of traditional custom, the law is observed: ibid;

    (d)the existence and content of NTRI must be found in the traditional laws and customs of the claim group (s 223(1)(a)). That is the premise on which the NT Act proceeds: Yorta Yorta at [40]. In Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96, the plurality said:

    [46]Native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title.  Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.  There is, therefore, an intersection of traditional laws and customs with the common law.  The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.

    (Emphasis in the original)

    Likewise, in Yorta Yorta at [50], the plurality said:

    [T]o speak of rights and interests possessed under an identified body of laws and customs is … to speak of rights and interests that are the creatures of the laws and customs of a particular society that exists as a group which acknowledges and observes those laws and customs.

    Thus, s 223(1)(a) refers to rights and interests “possessed” under the traditional laws acknowledged and the traditional customs observed;

    (e)not all rights which may be exercisable on an area of land or waters are rights “in relation to land or waters” for the purposes of s 223(1). In AB (decased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [547], Bennett J said:

    … A right to say what can occur on land is a right in relation to land.  The right to participate in ceremonies is a personal right, a status-based right in the Akiba (No 3) sense, and is not a right in relation to land.  Permission to attend Law ceremonies, generally given to all who wish to attend, does not amount to a grant of rights over the land.  In the same way, the permission-based rights claimed by the Warram, such as the right to conduct rituals, to hunt and fish and to take materials from the land for the purposes of Law ceremonies, are dependent upon the core rights of the Ngarla as traditional owners of that land.  They are personal or status-based rights.  The giving of permission to be “free” in the country is a personal right that does not convey any interest in Ngarla land.

    In Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238; (2018) 265 FCR 68, the Full Court at [88]‑[103], upheld the primary judge’s finding that the rights and responsibilities of a ritual leader who did not have descent or succession rights in the determination area were not NTRI;

    (f)section 225(a) contemplates that there may be more than one group having NTRI in the one area of land: Drury on behalf of the Nanda People v Western Australia [2020] FCAFC 69; (2020) 276 FCR 203 at [36], [165]. In Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [37], the plurality quoted with approval the statement of Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 358:

    … [t]raditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it.  Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it.

    (g)the term “traditional laws and customs” in s 223(1)(a) is a reference to a body of norms or a normative system: Yorta Yorta at [39]. They are those which “arise out of and, in important respects, go to define a particular society”: Yorta Yorta at [49]. In this context, “society” refers to “a body of persons united in and by its acknowledgment and observance of a body of law and customs”: ibid.

    (h)the word “traditional” is apt to refer to a means of transmission of law and custom.  A “traditional” law or custom is one which has been passed from generation to generation in a society, usually by word of mouth and common practice.  But the word “traditional” carries with it two other elements: first, an understanding of the age of the traditions such that the origins are to be found in the normative rules of the societies which existed before the assertion of sovereignty, and, secondly, the reference to rights or interests in land or waters being possessed under traditional laws and customs acknowledged and observed requires that the normative system is one which has had “a continuous existence and vitality since sovereignty”: Yorta Yorta at [46]‑[47]; Wyman v Queensland [2015] FCAFC 108; (2015) 235 FCR 464 at [158]. “Vitality” in this context does not connote an independent requirement, but rather that the normative system be described as “having life” (CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [353]), or as a “living system” (Narrier v State of Western Australia [2016] FCA 1519 at [303];

    (i)the society’s acknowledgement and observance of the traditional laws and customs must have continued substantially uninterrupted since sovereignty:  Yorta Yorta at [87]. If that is not the case, the laws and customs acknowledged and observed now cannot be properly described as the traditional laws and customs of the peoples concerned.  NTRI cease to exist if the society which observes them ceases to exist, or ceases to acknowledge the laws and to observe the customs from which the NTRI derive:  Yorta Yorta at [50];

    (j)for these reasons, applicants for determinations of native title must establish not only the laws or customs now acknowledged and observed by their society but also that those laws and customs are the traditional laws and customs which were observed at sovereignty (but allowing for some change or adaptation of the laws and customs in the sense described above):  Yorta Yorta at [56]. The NT Act does not allow to be recognised rights and interests in land or waters created after sovereignty and which owe their existence only to a normative system other than the new sovereign power asserted by the Crown: Yorta Yorta at [43];

    (k)however, the mere fact that there has been some change to, or adaptation of, traditional laws and customs, or some interruption of the enjoyment or exercise of the native title rights and interests between sovereignty and the present time is not necessarily fatal to a native title claim:  Yorta Yorta at [83]. The plurality in Yorta Yorta added in this respect:

    [89]In the proposition that acknowledgment and observance must have continued substantially uninterrupted, the qualification "substantially" is not unimportant.  It is a qualification that must be made in order to recognise that proof of continuous acknowledgment and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult.  It is a qualification that must be made to recognise that European settlement has had the most profound effects on Aboriginal societies and that it is, therefore, inevitable that the structures and practices of those societies, and their members, will have undergone great change since European settlement.  Nonetheless, because what must be identified is possession of rights and interests under traditional laws and customs, it is necessary to demonstrate that the normative system out of which the claimed rights and interests arise is the normative system of the society which came under a new sovereign order when the British Crown asserted sovereignty, not a normative system rooted in some other, different, society.  To that end it must be shown that the society, under whose laws and customs the native title rights and interests are said to be possessed, has continued to exist throughout that period as a body united by its acknowledgment and observance of the laws and customs.

    (Emphasis added)

    (l)this means that the Court should consider whether, despite a change or adaptation in the laws and customs, they can still be regarded as the traditional laws or the traditional customs acknowledged and observed at sovereignty;

    (m)a determination of native title under s 225(1) does not create new rights: it is instead a recognition of rights and interests possessed under traditional laws and customs of the group in question Yorta Yorta at [45], [76]; WA v Ward at [14]; and

    (n)the determination of the existence and content of NTRI involves factual enquiries: one to identify the traditional laws acknowledged and the traditional customs observed by the claimant group, and the other as to whether the traditional laws and customs so identified give rise to NTRI, that is, to establish the connection between the claimed rights and interests and the traditional laws and customs:  WA v Ward at [18].

12. Section 223(1)(b) requires expressly that the claimant group have a connection with the land or waters in question “by [the] laws and customs”, ie, by the traditional laws acknowledged and the traditional customs observed by the group: WA v Ward at [64]; Starkey on behalf of the Kokatha People v South Australia [2018] FCAFC 36, (2018) 261 FCR 183 (Lake Torrens Full Court).  This requires an identification of the content of the traditional laws and customs as they relate to the area in question and, secondly, the characterisation of the effect of those laws and customs as constituting a “connection” of the peoples with the land or waters: ibid; Bodney v Benell [2008] FCAFC 63; (2008) 167 FCR 84 at [165]. The required connection with the land or waters is essentially spiritual: WA v Ward at [14] (“the spiritual or religious is translated into the legal”). Accordingly, s 223(1)(b) does not require that the connection be physical, although it may be of that kind: Western Australia v Graham (on behalf of the Ngadju People) [2013] FCAFC 143; (2013) 305 ALR 452 at [37]. See also Sampi v Western Australia [2005] FCA 777 at [1079]. Further, the required connection is not by the Aboriginal People’s rights and interests: it is by their laws and customs: Bodney v Bennell at [165]. An applicant must establish that the connection has, in reality, been substantially maintained since the time of sovereignty: Bodney v Bennell at [161], [179].

1. Native title claimants have both an evidentiary and an ultimate onus of proof, subject to the issue of extinguishment.  I refer, without repeating, to the proposition stated by Mansfield J in Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 (Lake Torrens No 3) at [92]‑[98]. 

2. These principles have now been discussed and applied in a number of decisions of the Court including Badimia People v Western Australia [2016] FCAFC 67, (2016) 240 FCR 466; Wyman on behalf of the Bidjara People v Queensland [2014] FCA 528; Narrier; and Banjima People v State of Western Australia [2015] FCAFC 84, (2015) 231 FCR 456 (Banjima People Full Court).

   The effect of the determinations in the adjacent areas

3. It was common ground that each of the 2006 Yankunytjatjara/Antakarinja Determination and the 2012 Arabana Determination had “determined as a fundamental matter, once and for all” that NTRI existed in the areas to which those determinations related and that the NTRI were held by the Yankunytjatjara/Antakarinja People and the Arabana People respectively.  This means that each has been recognised as a society or communal group of people holding rights and interests possessed under traditional law acknowledged and the traditional customs observed by them having a connection with the respective determination areas.  These determinations and these recognitions cannot be called into question in the present proceedings – see Lake Torrens Full Court at [198]‑[202], [401]. 

4. The same may be said with respect to the Eringa No 1 and Eringa No 2 Determinations.  As the State submitted, each of these four determinations is to be taken to have established conclusively that the identified Aboriginal peoples held NTRI, as described in the determinations, with respect to each determination area “at sovereignty and [have] at all times since then”, so that the Court should not attach any weight to evidence which is directly inconsistent with those determined facts: Lake Torrens Full Court at [198]‑[201].

5. This means that the principal question on each application is whether either or both the Arabana and the Walka Wani establish, in accordance with s 223(1)(b) of the NT Act, that their NTRI extend to the Overlap Area and if so, whether they have continued to be possessed by the current societies in accordance with an acknowledgement of their respective traditional laws and an observance of their respective traditional customs.

   A summary of the parties’ contentions

6. The Arabana People contend that:

   (a)they are the same group of people who were recognised in the 2012 Arabana Determination and that they form part of a group of societies known as the “Lakes Cultural Group”, which extends from South‑west Queensland to Spencer Gulf in South Australia;

   (b)from both the date of sovereignty and effective sovereignty, the Overlap Area has been wholly within their “traditional country” and it was not shared country;

   (c)the claimants in their application, who are the descendants or successors of the native title holders at sovereignty, have continued to occupy the Overlap Area since those times, and continue to acknowledge and observe the traditional laws and customs connected to the Overlap Area;

   (d)the traditional laws and customs are the same as those recognised in the 2012 Arabana Determination;

   (e)the NTRI which they claim are non‑exclusive rights;

   (f)the Walka Wani People do not have any NTRI in the Overlap Area and any interest which they do have (apart from ceremony and by marriage) has arisen post‑sovereignty; and

   (g)the preponderance of the reliable anthropological and ethnographic evidence supports their claims.

7. The Walka Wani People contend that:

   (a)the Aboriginal people who occupied the Overlap Area at sovereignty were the LSA (sometimes referred to as “the Arrernte”) and Luritja/Yankunytjatjara People (sometimes referred to as “the Antakirinja”) and that the members of the claim group are the descendants of those peoples;

   (b)at sovereignty, the LSA and the Luritja/Antakarinja were members of a single society, although they could also be seen as members of two inter‑related and inter‑penetrating societies, who acknowledged and observed the same body of laws and customs relating to rights and interests in land and waters;

   (c)they are the same persons, or the descendants of the persons, who are recognised as native title holders in the Eringa No 2 Determination;

   (d)some of those persons were also recognised as native title holders in the 2006 Yankunytjatjara/Antakarinja Determination;

   (e)the Walka Wani claimants and their ancestors have continued substantially uninterrupted since sovereignty to acknowledge and observe the same body of traditional laws and customs; and

   (f)the Arabana People do not possess any NTRI in relation to any part of the Overlap Area.  While the Walka Wani agree that the Arabana People have continued to acknowledge and observe some traditional laws and customs, they dispute that that acknowledgement and observance gives rise to any connection of the Arabana People with the Overlap Area.  They assert that the Arabana People do not possess, and have never possessed, NTRI in the Overlap Area. 

8. The State contends that neither the Arabana nor the Walka Wani had established connection for the purposes of s 223(1)(b) of the NT Act. In the case of the Arabana that is because the connection they had with the Overlap Area has not been maintained. In the case of the Walka Wani that is because they did not have the requisite connection at sovereignty.

9. Part way through the trial, the Walka Wani amended their Statement of Facts, Issues and Contentions (SFIC) to raise a claim in the alternative, namely, that if the Arabana are found to have NTRI in the Overlap Area, they are shared NTRI.  However, in the final submissions counsel made only passing reference to this and that was in the Walka Wani rely to the State’s submissions.

10. The anthropologists from whom the Walka Wani (Drs Cane and Liebelt and Mr Graham) adduced evidence consider that there were three societies with rights and interests in the Overlap Area at effective sovereignty: Lakes Culture (Arabana), Western Desert (Antakarinja) and Arandic (Lower Arrernte).  They consider that the Overlap Area was a transitional zone in which the interests of the three societies converged.  The anthropologists from whom the Arabana and the State led evidence (Mr Lucas and Mr Sackett respectively) accept that there were three societies in the wider region at effective sovereignty, but do not accept that there was a Western Desert society in the Overlap Area at effective sovereignty and, by inference, at sovereignty.  Drs Cane and Liebelt, and Mr Graham, consider that the weight of the ethnographic‑historical evidence at effective sovereignty favours Antakarinja and Lower Arandic presence in the Overlap Area.  Dr Lucas and Dr Sackett, on the other hand, consider that the weight of the ethnographic‑historical evidence indicates that, at effective sovereignty, it was a Lakes Culture system of laws and customs which gave rise to interests in the land and waters of the Overlap Area.

    Boundaries and shared areas

11. It is well recognised that the Aboriginal boundaries to land may not be geographically precise and that the land of one people may merge gradually into the land of a neighbour.  Mansfield J recognised this in Lake Torrens No 3 at [125]:

    [T]here have been a number of cases that have recognised that “Aboriginal society does not mark out boundaries to land in western style”: De Rose v South Australia [2002] FCA 1342 at [908] per O'Loughlin J. So much is almost self-evident. I remarked in Barngarla at [778] that Aboriginal cultural groupings are not and were never, political entities and so there was never any need for them to be geographically demarcated with the precision one expects of nation states.  In Banjima People v State of Western Australia (No 2) [2013] FCA 868 at [182], Barker J made the observation that, in some circumstances, particularly where the country of one group begins to run out and the country of another starts, there may well be a basis for concluding that both groups have rights and interests and in that sense “share” that area of country.

12. Dr Luise Hercus, to whom I will refer later, made a similar point in 1994:

    Arabana … people did not think in terms of boundaries: there is in fact no such word in the language.  They were however certainly conscious of a series of places where their territory ‘cut out’ and someone else’s began …  The ‘cutting out’ may be viewed in some areas as quite definite, but mostly is used as gradual: the neighbouring people may ‘have a right’ in the area, that is they may come there freely for ceremonies without this being considered an act of aggression.

    The time of effective sovereignty

13. It was common ground that the relevant date for sovereignty is 1788.  It was also common ground that effective sovereignty had not occurred in the Overlap Area for a substantial time after 1788, but there was disagreement as to the time of its actual occurrence.  In part this seemed attributable to different understandings of what is meant by the term “effective sovereignty” and the purpose of identifying the time at which it occurred. 

14. The identification of the approximate time of effective sovereignty is a practical measure by which the absence of means of establishing the position at actual sovereignty can be overcome.  The Court identifies the position at the time of effective sovereignty with a view to inferring from that position what the position must have been at actual sovereignty: Gudjala People #2 v Native Title Registrar [2007] FCA 1167 at [64]. Accordingly, the term “effective sovereignty” has generally been taken to be a reference to the time of first European observation (Lake Torrens No 3 at [212]) or the time of first contact between the Aboriginal people and European settlers (Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308 at [276]; Banjima People v State of Western Australia (No 2) [2013] FCA 868, (2013) 205 ALR 1 at [82]), or “the period from which the claim area was progressively exposed to European settlement” (Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9, (2015) 325 ALR 213 at [209]).

15. The anthropologists from whom the Walka Wani led evidence (Dr Cane, Dr Liebelt and Mr Graham) considered that effective sovereignty was at the time at which there was “a meaningful impact on Aboriginal traditional law and custom caused by European settlement and the establishment of colonial law in the region”.  On this basis, they considered that effective sovereignty occurred in the period between 1875‑85 when pastoral stations were established in the area.  Dr Liebelt and Mr Graham also suggested that, if effective sovereignty was determined by reference to the time of first European contact, such contact may have occurred when John McDouall Stuart went through the area on his expedition in 1859.  In my view, this involved an over literal understanding of the notion of “first European contact” and the purpose for which one is identifying that time.  In any event, as will be noted below, while Stuart and his men saw signs of “native” activity in the area, they did not see any Aboriginal people which suggests that any contact then had been minimal. 

16. The experts called by the Arabana People and the State (Drs Lucas and Stockigt and Dr Sackett and Mr Gara respectively) considered that effective sovereignty occurred earlier, in the period 1872-73.  This was the time of first European contact.  This was in part because the establishment of pastoral stations to the south and north of the Overlap Area in 1872‑73 (the Peake and Charlotte Waters respectively) and, in part, because construction of the Overland Telegraph Line between 1870 and 1872 had brought hundreds of workers to the area as well as people travelling along the Line.  These matters contributed to sustained European contact.

17. The historical evidence supports the views of Drs Lucas, Stockigt, Sackett and Mr Gara. 

18. The first white person to traverse the Overlap Area (or the region in close proximity to it) was John McDouall Stuart in the course of his 1859 expedition.  In addition to naming the Neales on that expedition, he also named a creek south of Oodnadatta and running in a general west-east direction as the Peake.  Stuart passed through the area again on his later expeditions between 1860 and 1862.

19. The explorers Babbage and Warburton had discovered the mound springs in the area south and south‑east of the Overlap Area in 1858.  That led to the establishment of sheep stations in the vicinity of those mound springs, including Finniss Springs, Strangways Springs and Mt Margaret which became the Peake Station and (in 1861) Mount Hamilton Station to the northeast of Oodnadatta.  The Peake Station, which is now part of Anna Creek Station, was operating from 1870.  A sheep run was established on the Macumba River in about 1870 but abandoned after two or three years.  The first lease of Dalhousie Station (north of Oodnadatta) was taken up on 1 January 1873.  Macumba Station (north of Oodnadatta) was operating from 1874, having been established in 1872‑3.  The introduction of large numbers of sheep, cattle and horses after 1870 must have had a significant impact on Aboriginal foraging patterns.

20. The incursion of white persons into the Overlap Area accelerated from June 1870 with the surveying for the Overland Telegraph Line between Port Augusta and Darwin.  Construction of the line commenced in Port Augusta in October 1870.  It was completed as far as the Macumba River (north of Oodnadatta) in January 1871 and completed to Darwin in August 1872.  The construction was a significant undertaking, requiring large amounts of equipment and supplies which (from the south) were transported from Adelaide or Port Augusta by camels and horse drawn drays.  Depots and other facilities for workers were established along the Line and repeater stations were erected at intervals of about 200 miles.  In 1870 a tent city was established by telegraph line workers on the Neales, just north of Oodnadatta.

21. In the vicinity of the Overlap Area, the repeater stations were at Strangways Springs (now part of Anna Creek Station), The Peake Station and Charlotte Waters.  These were completed by early 1872.  Both Strangways Springs and the Peake are south‑east of the Overlap Area and Charlotte Waters is just north of the Northern Territory border.  Police stations were established at the Peake and Charlotte Waters in 1873.  Graham and Liebelt described the Peake as “a significant settlement on the north‑south route with numerous buildings and an inn for travellers”.

22. The route of the Overland Telegraph Line also quickly became a “jumping off point” for further exploration and pastoral development throughout the region.

23. The track following the Telegraph Line became the principal access route to Central Australia for pastoralists, explorers, missionaries, police, settlers, teamsters, hawkers, cameleers and travellers.  The present Oodnadatta Track follows substantially the same route.

24. There were several references in the evidence to the movement of Aboriginal people up and down the Telegraph Line before the construction of the railway line.  It seemed to be common ground that this had increased after the construction of the railway line. 

25. Apart from impacts brought about by access to European food and perhaps employment, the workers brought diseases for which the indigenous populations did not have immunity.  Even before the Spanish Flu of about 1919, this resulted in reductions in the Aboriginal populations.

26. Following the construction of the Overland Telegraph Line, new pastoral stations were established at Dalhousie Springs and Macumba (both north of the Overlap Area) in 1872‑3.  Shortly afterwards, smaller stations nearer to the Overlap Area (but south of it) were established at Nilpinna, Cootanoorinna and Allandale.

27. One indication of the impact of the construction of the Telegraph Line is seen in the report of FW Andrews, the “collecting naturalist” on the Lewis expedition to Lake Eyre in 1874‑5.  He reported that, at the Macumba, they met Tommy who “had a good smattering of English from having been with the telegraph construction parties for some time and was very useful as a guide and interpreter”.

28. Given this history, I consider that the opinions of Drs Lucas, Stockigt and Sackett and Mr Gara as to the date of effective sovereignty are likely to be correct and I accept them.  Drs Cane and Liebelt and Mr Graham overlooked the developments before 1870 and the significant impact of the construction of the Overland Telegraph Line.

29. All parties accepted that the Court may draw the inference that the position at sovereignty was the same as it was at effective sovereignty.

30. It was also common ground that effective sovereignty does not mean that there was a collapse at that time of Aboriginal law and custom in the region.

    Some further history

31. Oodnadatta was announced as the terminus of the Great Northern Railway in October 1889.  The proclamation of Oodnadatta as a town occurred in October 1890.  Construction of the Great Northern Railway to Oodnadatta was completed in June 1891.  Oodnadatta then became an important supply centre in Central Australia.  It remained the terminus of the Great Northern Railway until 1926 when the rail line was extended to Alice Springs. 

32. The precise origin of the name “Oodnadatta” is not clear.  The South Australian Chronicle on 4 January 1890 reported that “the terminus of the line will no longer be called Angle Pole, but will in future be called Oodnadatta, a spot near Mount O’Halloran, the reason being the desire of the department to preserve the native names as far as possible”.  The name had been recorded by the surveyor, Edward Lees, a few years earlier.  I will refer later to the evidence indicating that it is more likely to be an Arrernte name than an Arabana name.

33. In 1892, local pastoralists lobbied a touring South Australian Parliamentary party to establish a stock reserve near to the rail terminus.  This request was repeated by a petition in August 1897.  The stock reserve was gazetted on 14 October 1897 and the area became known as the “Oodnadatta Common”.  It comprises most of the area surrounding Oodnadatta shown in the map in [3] of these reasons.

34. The principal use of the Common was for holding and feeding of stock before it was loaded onto the Ghan to travel south.  This continued until the closure of the railway line in 1980.  Some 20 acres of the Oodnadatta Common were resumed in 1940 in order to establish a camping reserve for Aboriginal people.  Apart from the areas used for Aboriginal camps, other uses of the Oodnadatta Common from time to time have included a market garden along the banks of the Neales River and, in addition, parts of the Common have been acquired for use as the airport, the Racing and Gymkhana Clubs, the cemetery and for the purpose of public utilities.

    The expert evidence

35. The Arabana led evidence from two experts.  These were Dr Rodney Lucas, an anthropologist, and Dr Clara Stockigt, a linguist.  Dr Lucas provided reports dated 19 March and 14 October 2019 and Dr Stockigt reports dated 19 March and 27 September 2019 and 12 October 2020. 

36. The Walka Wani led evidence from four experts.  These were Dr Scott Cane, Mr Robert Graham, Dr Belinda Liebelt and Dr Paul Black.  Each of Dr Cane, Mr Graham and Dr Liebelt is an anthropologist, and Dr Black is a linguist.  Drs Cane and Liebelt provided a joint report dated 22 March 2019.  This report was drawn from field work and research undertaken by Dr Cane in 2005‑2006 for the Yankunytjatjara/Antakarinja native title claim.  Mr Graham and Dr Liebelt provided a joint report dated 22 March 2019.  Mr Graham also provided a male gender restricted report dated 28 March 2019.  Dr Black provided a report dated 30 July 2019 and an Addendum to that report on 16 July 2020. 

1. It is true that the evidence in the trial concerning tenure was directed to the issue of occupation.  In particular, the Walka Wani led substantial evidence from Maria Stewart directed to that topic.  It seems that the Walka Wani had proceeded on the basis that, subject to the Court being satisfied as to connection, proof of occupation of the relevant allotments would result in the prior extinguishment of native title being disregarded. 

2. However, the Walka Wani did not contend that they had been denied procedural fairness on this topic in the trial.  Nor did they contend that there was further evidence which could have been led had they been aware that the qualification with respect to the construction and establishment of public works was in issue.  Indeed, the uses to which Lot A1 had been put seemed to have been common ground in the proceedings. 

3. Accordingly, the Walka Wani did not indicate a principled basis on which the Court could find that it was “contrary to the interests of justice” for the State to be permitted to maintain this submission and their submission to this effect must be rejected.

4. I uphold the submission of the State. There was some suggestion that the State submission could be upheld only with respect to portions of Lot A1. But neither the evidence nor the submission identified any separate portions to which the submission was not applicable, and I have taken any claim with respect to residual portions of Lot A1 to be abandoned. The effect is that s 47A is not available for any of Lot A1.

   Health and welfare services

5. The State submitted that the qualification concerning the grant of freehold estate for the provision of services such as health and welfare services operates with respect to 29 allotments.  This submission was made in the following circumstances.

6. The Dunjiba Community Council Inc, a body corporate under the Associations Incorporation Act 1985 (SA) and formerly known as the “Oodnadatta Aboriginal Housing Society”), holds 49 parcels of land with freehold title in Oodnadatta. On 28 March 2012, Dunjiba entered into a Memorandum of Lease with the Minister for Social Housing in South Australia, pursuant to which it leased to the Minister 47 properties.

7. Housing SA then entered into subleases of several of the properties to Aboriginal residents in Oodnadatta.  The State provided the subleases for all of the sub‑tenancies into which Housing SA had entered which were in effect (relevantly) on 12 April 2013.  There are 29 subleases in all.  They are listed in Tenure Table 4.

   Tenure Table 4

Sublease reference	Lot No	Sublease reference	Lot No	Sublease reference	Lot No
DUN118A	A77	DUN130A	A51	DUN232B	No Lot No given
DUN119A	A78	DUN131A	A50	DUN241A	No Lot No given
DUN120A	A79	DUN145A	A44	DUN242A	No Lot No given
DUN121A	A81	DUN145B	A44	DUN247A	No Lot No given
DUN122A	A82-A83	DUN147A	A42	DUN312A	No Lot No given
DUN123A	A58-A59	DUN153A	A89	DUN313A	A13
DUN124A	A57	DUN227B	No Lot No given	DUN315A	A15
DUN126A	A84	DUN228B	No Lot No given	DUN318A	A18
DUN127A	A54	DUN229A	No Lot No given	DUN323A	A93
DUN128B	A53	DUN231B	No Lot No given

1. The elements of the State’s submission that the qualification in s 47A(2)(b) with respect to grants of freehold for the provision of services such as health and welfare services is applicable seemed to be these:

   (a)the objects of Dunjiba as set out in cl 2 of its Constitution include:

   To establish, promote, operate and coordinate services and facilities for the advancement and well-being of the Oodnadatta Aboriginal Community.

   with the implication, as I understood it, that it was engaged in the provision of health and welfare services;

   (b)the subleases were entered into by Housing SA pursuant to the Public Housing Program of the South Australian Housing Trust; and

   (c)the weekly rents of $20 in the subleases indicated that the properties were supplied as “welfare housing”. 

2. On this basis, the State submitted that, irrespective of evidence about occupation, s 47A(2) did not have the effect of causing the original freehold grant over the properties to Dunjiba, or its predecessor, of any of the properties sublet by Housing SA to be disregarded.

3. There are a number of reasons why this submission should be rejected.

4. In the first place, the State did not provide any evidence concerning the original grant of freehold estate to Dunjiba or its predecessor.  There is no evidence as to the circumstances in which that freehold was granted or the purpose for which it was granted. 

5. Secondly, the State’s reliance on cl 2.1 in the objects of the Dunjiba Constitution has some elements of selectivity.  The full content of cl 2 is as follows:

   2.        OBJECTS

   The Objects of the Association shall be:-

   2.1To establish promote, operate and co-ordinate services and facilities for the advancement and well being of the Oodnadatta Aboriginal Community.

   2.2To acquire land and property and to build, establish, develop, maintain, renovate and deal with and such buildings, land and property.

   2.3To encourage, promote and provide social educations, cultural and sporting activities.

   2.4To preserve and propagate the traditional culture and law of the Antikiringa, Southern Aranda and other tribal groupings who make up the Aboriginal population of Oodnadatta and the surrounding areas.

   2.5To promote the legitimate claims and interests of the members of the community their traditional lands and to assist them in legal and political action in respect of such claims.

   2.6To create and maintain a community who recognise that the value of the community interest is greater than the interest of one or a few members.

   2.7To do all such other things as may be incidental to the attainment of such objects.

6. These objects are diverse.  They do not suggest that the principal function of Dunjiba is the provision of health and welfare services, let alone that it is in fact engaged in the provision of such services.  The operation of services and facilities for the advancement and well‑being of the Oodnadatta Aboriginal Community seems much more broadly based.  It is a community organisation, not just a health and welfare organisation.

7. Thirdly, the State did not indicate why the provision of public housing to individual residents should be characterised as the provision of “health and welfare services” within the meaning of s 47A(2)(b). This proposition was left to inference. It is to be noted that the expression in s 47A(2)(b) is the “provision of services (including health and welfare services)”. There is an obvious issue as to whether the renting of a house, even by a public housing authority, is the provision of “service”. Further, in the context of s 47A(2)(b), the provision of a health or welfare services seems to have the connotation of a service of the kind available to a community generally. The provision of accommodation to an individual is not such a service.

8. Fourthly, as a matter of general experience, the amount of a rental is usually influenced by a number of factors, including supply and demand.  But the State did not adduce any evidence concerning the factors taken into account in the fixing of the rentals to support its submission that a rent of $20 per week indicated the provision of “welfare housing”.  It can be inferred that the State was in a position to do so if it wished.  Oodnadatta is a very remote community and its very remoteness may contribute to rentals being modest.  The term “welfare housing” used by the State in its submission is in any event imprecise.  It is not entirely clear what the State meant by the term.  It did not lead any evidence concerning the program pursuant to which the housing was provided by which the Court could determine that the housing is “welfare housing” of some form.  It is not even clear that it is a term which the State itself uses with respect to the subleases. 

9. This particular submission of the State had the air of an afterthought, having been raised for the first time in the closing submissions. Whether or not that be so, the State has not led evidence necessary to support it. Instead the State seeks to have the Court engage in speculation. It is not appropriate to do so. The result is that I am not satisfied that the qualification in s 47A(2)(b) concerning the provision of services such as health and welfare services has any application to the houses sublet by Housing SA.

   Occupation - principles

10. The requirements for occupation in the context of s 47A(1)(c) and its counterpart in s 47B(1)(c) have now been discussed in a number of authorities. These include Northern Territory of Australia v Alyawarr [2005] FCAFC 135, (2005) 145 FCR 442 at [179]‑[196]; Moses v Western Australia [2007] FCAFC 78, (2007) 160 FCR 148 at [206]‑[218]; Banjima People Full Court at [121]‑[129]; and Fortescue Metals Group v Warrie on behalf of the Yindjbarndi People [2019] FCAFC 177, (2019) 273 FCR 350 at [417]‑[422], [465]‑[470].

11. It is sufficient for present purposes to set out the principles stated by the Full Court in Moses at [215], noting however, that these were given in relation to broad expanses of arid country, rather than in relation to residential or township allotments:

    …

    (1)to “occupy” an area for the purposes of ss 47A and 47B of the NTA involves the exercise of some physical activity or activities in relation to the area;

    (2)to “occupy” an area does not require the performance of an activity or activities on every part of the land;

    (3)to “occupy” an area does not necessarily involve consistently or repeatedly performing the activity or activities over part of the area;

    (4)to “occupy” an area does not require constant performance of the activity or activities over parts of the area;  it is possible to conclude that an area is occupied where there are spasmodic or occasional physical activities carried on over the area;

    (5)to occupy an area at a particular time does not necessarily require contemporaneous activity on that area at the particular time; it is possible to conclude that an area of land is occupied in circumstances where at the time the application is made there is no immediately contemporaneous activity being carried on in the area;

    (6)the fact of occupation does not necessarily entail a frequent physical presence in the area; for example, the storage of sacred objects on the area or the holding, from time to time, of traditional ceremonies on the area may constitute occupation for the purposes of the NTA:  see, e.g. Rubibi Community v Western Australia (2001) 112 FCR 409 at [182];

    (7)evidence to establish occupation need not necessarily be confined to evidence of activities occurring on the particular area; it may be possible to establish that a particular area is occupied by reference to occupation of a wider area which includes the particular area:  Risk [2006] FCA 404 at 890;

    (8)occupation need not be “traditional”:  Rubibi (No 7) [2006] FCA 459 at [84];

    (9)whether occupation has been made out in a particular case is always a question of fact and degree.

    The UAM allotments

12. Three allotments (Lots A329 and A330 and A47) are owned by the United Aborigines Mission (now the Uniting Church).  With the exception of some evidence concerning apparent intermittent camping and cooking of food, the Walka Wani did not adduce evidence with respect to the occupation of Lots A329 and A330 in April 2013.

13. The only evidence of occupation of Lot A47 is that, in 2013, Maria Stewart’s cousin (Julia), had conducted open air church services on it. However, it seems that Julia was conducting these services on behalf of the Uniting Church. That did not constitute occupation by a member of the Walka Wani claim group. Accordingly, the Walka Wani have not shown that s 47A can be invoked in respect of these three allotments.

    Assessment of occupation

14. The State and the Walka Wani agreed that the Walka Wani have provided “acceptable occupation evidence” for 19 complete allotments and part of Allotment F17270A1 (Lot A1) as set out in Tenure Table 5:

    Tenure Table 5

H831300S372	T831302A68	T831302A73	T831302A78
F17270A1	T831302A69	T831302A74	T831302A82
T831302A57	T831302A70	T831302A75	T831302A83
T831302A66	T831302A71	T831302A76	H831300S275
T831302A67	T831302A72	T831302A77	H831300S623

1. Lots A57, A77, A78, A82 and A83 were included in those which the State had submitted were the subject of grants of a freehold estate for the provision of services such as health and welfare services.

2. The State also agreed that the Walka Wani had provided “acceptable occupation evidence” over portion of Lot F17270A1 but, as I have found that was within the public works exception, a determination of native title cannot be made in respect of that allotment. 

3. The balance of the State’s submissions concerning the application of s 47A concerned the factual issue of occupation. However, the State’s position concerning this issue really distilled to one concerning the group identity of the persons on whom the Walka Wani relied as having been in occupation. Apart from this, it did not question Maria Stewart’s evidence of physical occupation in April 2013.

4. The State referred to the contradictory evidence of the Arabana and to Walka Wani as the group identity of several of the Oodnadatta residents. It submitted that in this circumstance the Court could not be satisfied that the persons who had occupied the houses in Oodnadatta were members of the Walka Wani claim group as required by s 47A(1)(c).

5. The State made this submission by reference to the aide memoire forming part of Exhibit S83 which contained a summary of the evidence relating to 55 allotments or parts of allotments.  It submitted that this aide memoire revealed 11 allotments which associated individuals with both the Arabana and the Walka Wani.  The State also submitted that, while the evidence identified persons as belonging to one of the “general” constituent groups (Yankunytjatjara, Antakarinja, Luritja and Arrernte) making up the Walka Wani, it did not indicate whether the persons were actually members of the Walka Wani claim group. 

6. In neither instance, did the State indicate the particular persons to whom it was referring.  It also made its submission without reference to the claim group descriptions in the Arabana and Walka Wani applications and without seeking to apply those descriptions in the light of the genealogies (which it had itself usefully provided).  Nor, with some exceptions, did the Walka Wani.  The consequence is that it is not easy to grapple with the submissions in detail.

7. Earlier in these reasons, in relation to the issue of continued connection of the Arabana, I rejected the approach of the Walka Wani which seemed to have been based on a rather narrow understanding of the circumstances in which a person could be Arabana.  For much the same reasons, I reject the approach of the State with respect to those who are members of the Walka Wani insofar as it too assumes that the circumstances in which a person might be regarded as Walka Wani are narrowly confined. 

8. The result of the frequent inter‑marriages between persons in each group, especially in the earlier generations, and the application by the Arabana and the Walka Wani of the criteria for group membership in a practical rather than a legalistic way, has meant that there is considerable flexibility in the way in which persons may identify themselves, or by which they may be identified by others, as the member of one or other or both groups.  I also had the strong impression that, by reason of increasing forcefulness by the Walka Wani in the assertion of their claims over Oodnadatta and the diminishing presence of the Arabana, there have been some changes in affiliations and loyalties over time which has added to the complexity of the situation. 

9. There is some evidence supporting the Walka Wani submissions concerning the identity of the persons in occupation of the various allotment in April 2013.  As previously indicated, I regarded Maria Stewart’s extensive evidence about the persons in occupation of the individual allotments as generally reliable.  Her evidence about the group identities of some of the residents is also supported in some instances by the Walka Wani genealogies.  

10. I also consider that there is some force in the Walka Wani submission that, if the person in occupation of a property at the relevant date is within the description of the Walka Wani claim group, that person is a descendant of at least one apical ancestor, and there is evidence from members of the claim group that they are regarded as Walka Wani, that should be sufficient to establish membership of the native title claim group for the purposes of s 47A(1)(c).

11. However, there is also no reason to doubt the sincerity or reliability of the Arabana witnesses concerning the group identity of persons in Oodnadatta. 

12. In most of the instances in which there was a dispute about the identity of the People with whom the residents of Oodnadatta associate, I have taken the view that a determination would require much more detailed evidence and examination than that which was essayed in the trial.  In particular, it would be desirable to hear evidence from the residents themselves or from persons close to them.  Hearsay evidence on topics such as this is undesirable.  I also consider that it would be inappropriate to proceed on the basis of the evidence of those Walka Wani witnesses, such as Audrey Stewart, whose evidence was obviously influenced by their antipathy to the Arabana.

13. In these circumstances, I consider that there are several allotments in respect of which the Walka Wani have not discharged their onus of proof under s 47A(1)(c). In particular, I consider that the Walka Wani have not established that the residents listed in Tenure Table 6 were members of their claim group in occupation of the identified allotments in April 2013.

    Tenure Table 6

Lot No	CT reference	Resident
A11	CT5401/840	Amos family
A18	CT5573/601	Julia Lennon
A27	CT5573/302	Tanya Bailes and Ally Warren
A38	CT5621/140	Talitha Warren (Bailes)
A50	CT5536/235	Lyle Warren
A79	CT5672/214	Maxine Marks and Bobby Bailes

1. There were three further allotments in respect of which, with the possible exception of DUN241A, it was not clear that the Walka Wani were claiming the application of s 47A. However, for similar reasons, I am not satisfied that the Walka Wani have established occupation by a member of their claim group in respect of these allotments:

   ·DUN241A – Peter and Dennis Amos;

   ·DUN247A – Serena, Kiara and Kerarmiah Amos; and

   ·DUN312A – Kahlia and Trevahn Amos. 

2. There are six allotment which were shown in Exhibit 2A40 as possibly subject to s 47A. These are listed in Tenure Table 7.

   Tenure Table 7

Lot No	CT reference
A14	CT5823/964
A50	CT5536/235
A51	CT5536/236
A52	CT5536/236
A81	CT5441/67
A88	CT5490/781

1. The Walka Wani did not make any final submissions concerning these allotments and I did not understand them to have been subject to any relevant concession by the State. The Walka Wani and the State left the position with respect to these allotments unclear, so that it cannot be determined that s 47A applies to them.

2. Otherwise, given the State did not dispute the balance of the occupations asserted by the Walka Wani, I accept their submissions concerning the sufficiency of the evidence of occupation concerning the remainder of the allotments in Oodnadatta. 

3. The end result is that, in respect of the allotments to which the Walka Wani claimed s 47A was applicable, I do not accept that submission in respect of the whole of Lot F17270A1, nor in respect of the allotments listed in Tenure Table 6, nor in respect of DUN241A, DUN247A and DUN312A and nor in respect of the allotments in Tenure Table 7. I accept the Walka Wani submissions in relation to the other allotments to which they claimed s 47A is applicable.

   Non-exclusive native title

1. The State and the Walka Wani agreed that, subject to the application of s 47A of the NT Act, the grants of tenure and gazettals over the remaining allotments in the Overlap Area have extinguished rights to control access and, accordingly, that the NTRI which may be determined by the Court will be non‑exclusive.

   Conclusion on Tenure

2. In summary, native title has been wholly extinguished on the 72 allotments listed in Tenure Table 2, in Lot F172701A1, in the UAM Lots A47, A329 and A330, in the Lots listed in Tenure Table 6, in allotments DUN241A, DUN247A and DUN312A, and in the six allotment listed in Tenure Table 7. 

3. The Walka Wani have non‑exclusive native title, subject to the existing rights and interests over the remaining allotments, including those listed in Tenure Table 1 and Tenure Table 3 (other than those excluded by these reasons).

   Disposition

4. The application by Aaron Stuart and others in Action SAD38/2013 be dismissed.

5. The parties in Action Nos SAD78/2013 and SAD220/2018 are to confer with a view to providing the Court with minutes of the orders to be made to give effect to these reasons.  The matter is adjourned to a date and time to be fixed for the making of orders.

I certify that the preceding (1053) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.

Associate:

Dated:       21 December 2021

SCHEDULE OF PARTIES

SAD 38 of 2013
First Applicant
Arabana No 2 Native Title Claim (Part 2) (SAD38/2013)
Applicant:	JOANNE WARREN
Applicant:	PETER WATTS
Applicant:	GREG WARREN (SNR)
Applicant:	DESMOND DODD
Applicant:	WALKA WANI NO 2 NATIVE TITLE CLAIM
Applicant:	WALKA WANI NO 1 NATIVE TITLE CLAIM
Applicant:	HUEY TJAMI
Applicant:	AUDREY STEWART
Applicant:	DEAN AH CHEE
Applicant:	CHRISTINE LENNON
Second Applicant
Walka Wani Oodnadatta Native Title Claim (SAD78/2013)
Applicant:	HUEY TJAMI
Applicant:	CHRISTINE LENNON
Third Applicant
Walka Wani Oodnadatta #2 Native Title Claim (SAD220/2018)
Applicant:	DEAN AH CHEE
Respondent:	AIRSERVICES AUSTRALIA
Respondent:	DOULGAS GORDON LILLECRAPP