[Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Court of Australia

You are here: AustLII >> Databases >> Federal Court of Australia >> 2009 >> [2009] FCA 359

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 (30 March 2009)

Last Updated: 28 April 2009

FEDERAL COURT OF AUSTRALIA

Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359

GORDON COULTHARD, ANGELINA STUART, GERALDINE (THATHY) ANDERSON, VINCENT COULTHARD, STEWART PATTERSON, BEVERLEY PATTERSON, MARK MCKENZIE ON BEHALF OF THE ADNYAMATHANHA PEOPLE v THE STATE OF SOUTH AUSTRALIA & OTHERS

SAD 6001 of 1998

MARK McKENZIE & OTHERS ON BEHALF OF THE ADNYAMATHANHA PEOPLE v THE STATE OF SOUTH AUSTRALIA & OTHERS

SAD 6002 of 1998

MANSFIELD J
30 MARCH 2009
NEPABUNNA

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 6001 of 1998 SAD 6002 of 1998

BETWEEN:	GORDON COULTHARD, ANGELINA STUART, GERALDINE (THATHY) ANDERSON, VINCENT COULTHARD, STEWART PATTERSON, BEVERLEY PATTERSON, MARK MCKENZIE ON BEHALF OF THE ADNYAMATHANHA PEOPLE Applicants
AND:	THE STATE OF SOUTH AUSTRALIA & OTHERS Respondents
BETWEEN:	MARK McKENZIE & OTHERS ON BEHALF OF THE ADNYAMATHANHA PEOPLE Applicants
AND:	THE STATE OF SOUTH AUSTRALIA & OTHERS Respondents

JUDGE:	MANSFIELD J
DATE OF ORDER:	30 MARCH 2009
WHERE MADE:	NEPABUNNA

THE COURT ORDERS IN MATTER SAD 6001 OF 1998 (THE ADNYAMATHANHA NO 1 NATIVE TITLE DETERMINATION APPLICATION) THAT:

There be a consent determination of native title rights and interests over the area known as Angepena Pastoral Station and more particularly described in Schedule 1 to the orders annexed hereto and marked “A” in the terms set out in the order annexed hereto and marked “A”.
There be a consent determination of native title rights and interests over part of the area covered by the application and being the area particularly described in Schedule 1 to the orders annexed hereto and marked “B” in the terms set out in the order annexed hereto and marked “B”.

THE COURT FURTHER ORDERS IN MATTER SAD 6002 OF 1998 (THE ADNYAMATHANHA NO 2 NATIVE TITLE DETERMINATION APPLICATION) THAT:

There be a consent determination of native title rights and interests over the whole of the area covered by the application in the terms set out in the order annexed hereto and marked “C”.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 6001 of 1998 SAD 6002 of 1998

BETWEEN:	GORDON COULTHARD, ANGELINA STUART, GERALDINE (THATHY) ANDERSON, VINCENT COULTHARD, STEWART PATTERSON, BEVERLEY PATTERSON, MARK MCKENZIE ON BEHALF OF THE ADNYAMATHANHA PEOPLE Applicants
AND:	THE STATE OF SOUTH AUSTRALIA & OTHERS Respondents
BETWEEN:	MARK MCKENZIE & OTHERS ON BEHALF OF THE ADNYAMATHANHA PEOPLE Applicants
AND:	THE STATE OF SOUTH AUSTRALIA & OTHERS Respondents

JUDGE:	MANSFIELD J
DATE:	30 MARCH 2009
PLACE:	NEPABUNNA

REASONS FOR JUDGMENT

INTRODUCTION

Two separate applications for a determination of native title under s 61 of the Native Title Act 1993 (Cth) (the NT Act) have been made on behalf of the Adnyamathanha people over claim areas described in the applications in and around the Flinders Ranges National Park. I have described those claims in separate reasons for ruling that I would make the three consent determinations which the parties have requested: Adnyamathanha No 1 Native Title Claim v the State of South Australia [2009] FCA 358 at [2]. I will not repeat those descriptions.
The parties to each of the applications for determination of native title have reached an agreement that native title exists within certain parcels of land within the claim areas, and that native title has been extinguished, at least partly, in other parts of the claim areas. They have agreed also about the nature and extent of those native title rights and interests. The parties have now applied under ss 87 and 87A of the NT Act for three determinations by consent over those parts of the claim areas.
The area for which the first determination is sought covers a single pastoral lease in the Adnyamathanha No 1 Native Title Claim called the Angepena Pastoral Lease or the Angepena Pastoral Station. It is the whole of the land within the outer boundary of the Angepena Pastoral Lease, being the outer boundary of Allotment 207 in Filed Plan 43315, Out of Hundreds (Copley), subject to the areas over which native title has been extinguished by the acts specified in Schedule 2 to the proposed determination.
The second determination relates to a much larger part of the Adnyamathanha No 1 Native Title Claim over which the parties also agree that native title rights and interests should be recognised in favour of the claim group so that a determination should be made. It is a very large part of the area of the Adnyamathanha No 1 Native Title Claim, described in Schedule 1 to the proposed determination and shown in the map forming part of that Schedule. I shall not repeat that description. Within the area to be covered by the determination, there are specified areas where native title is not, or not presently, to be determined (as described in Schedule 2 Part 1) to exist either because it is accepted that it has been extinguished or because the parties require further time to assess tenure and whether s 47B of the NT Act applies to them (as described in Schedule 1 Appendix 2 and Schedule 2 Part 2). The determination area includes the Lake Frome Regional Reserve proclaimed under the National Parks and Wildlife Act 1972 (SA), and although the native title rights and interests are to be declared to exist over that area, they are subject to the non-extinguishment principle, as explained in s 238 of the NT Act and in Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [7] and Risk v Williamson (1998) 87 FCR 202 at 226-7. Finally, s 47A of the NT Act operates so that certain of the area is held with exclusive native title rights and interests because any extinguishment by earlier acts is to be disregarded. That includes the land held by the Aboriginal Lands Trust and now leased to the Nepabunna Community Inc, as well as other land held by the Aboriginal Lands Trust and the Mount Serle Pastoral Lease PE 2290.

The third proposed determination relates to the whole of the Adnyamathanha No 2 Native Title Claim, which comprises the whole of the Flinders Ranges National Park.

The native title rights and interests to be granted do not cover certain specified areas where they have been extinguished, and there are also areas where those rights and interests continue to exist but by reason of the National Parks and Wildlife Act 1972 (SA) they are subject to the non-extinguishment principle to the extent that it operates in respect of those rights.
I note that four other native title claims under s 61 of the NT Act have, in the history of these proceedings, overlapped the area the subject of the Adnyamathanha No 1 Native Title Claim. They are claims made by the Arabunna, Barngala, Dieri and Nukunu people. Those four overlaps have now been resolved by agreement, at least so far as the areas to be covered by the proposed determinations are concerned.

WHETHER THE PROPOSED CONSENT DETERMINATIONS SHOULD BE MADE

Section 87 of the NT Act sets out the Court’s power to make orders sought by the consent of the parties. The application for a determination over the whole area of the Adnyamathanha No 2 Native Title Claim is pursuant to s 87 of the NT Act.
Section 87A of the NT Act sets out the Court’s power to make orders sought by consent of the parties to make a determination for part of an area. The two applications for determinations over much of the area of the Adnyamathanha No 1 Native Title Claim (including the separate determination in relation to Angepena Station) are pursuant to s 87A of the NT Act.
Both ss 87 and 87A require the period of notice under s 66 to have elapsed. It has clearly done so. Section 87 requires that a signed copy of the agreed orders has been filed with the Court. Section 87A requires that a copy of the agreed orders has been filed with the Court signed by all those persons specified in s 87A(1)(c). That is, in effect, the persons whose interests may be directly affected by the proposed determination over that part of the claim area. Section 87A(3) then requires the Registrar of the Court to give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court. In the event that any party notified pursuant to s 87A(3) objects to the proposed determination, s 87A(5) requires the Court to take into account any such objection in deciding whether to make the orders sought under s 87A.
I am satisfied of each of those requirements or pre-conditions to the making of the proposed orders. There has been no objection by any party notified under s 87A(3) to their being made.
It is appropriate to mention one other matter. Shortly before the hearing of the applications, on 27 March 2009, a pastoralist whose pastoral lease appears to be within the larger determination area of the Adnyamathanha No 1 Native Title Claim, communicated by letter to the Court. The pastoralist did not consent to the proposed determination. The Registrar responded on the same day, to point out that the pastoralist had not applied to be a party to the application despite notification of the claim by the Registrar of the National Native Title Tribunal pursuant to s 66 of the NT Act having occurred much earlier. The pastoralist could then have become a party under s 84(3), but did not do so. The Registrar also pointed out that, even after that time, the pastoralist could apply under s 84(5) and O 78 r 8 of the Federal Court Rules to be joined as a party to the application. It is a straightforward procedure. No such application was made. Notwithstanding those matters, the pastoralist by facsimile to a Court officer on the morning of the hearing again objected to the consent determination. Even then, no application was made to become a party to the proceeding.
I decided to proceed with the hearing of the application for consent determinations, and to make the consent determinations, notwithstanding those communications. There are two reasons.
First, the various notification procedures prescribed in the NT Act are for an obvious and very good reason. Any person potentially affected by an application for the determination of native title under s 61 of the NT Act is thereby given notice of the application and the opportunity to become a party to it to protect that person’s interests. The notification under s 66 is widespread: to the States or Territories where the claim area exists, to the Commonwealth, to the native title representative bodies for the claim area, to any other registered native title claimant or body corporate or other indigenous entity in respect of the claim area, any local government authority over any part of the claim area, any person who has a registered proprietary interest in any part of the claim area, and by way of public advertising. Section 84 then facilitates all such persons being recognised as parties and being given the opportunity to represent and protect their interests. A person so notified may elect not to become a party to the proceeding. But such a person cannot then whimsically or capriciously choose to assert their claimed interests at any time and without regard to the structure provided by the NT Act. It is to identify those interested parties who wish to participate in the proceeding so that their interests may properly be taken into account, both procedurally and substantively, in accordance with the NT Act. That is necessary for the proper and fair and timely consideration of the issues arising on an application. Section 84(5) provides for a person choosing not to become a party following notification to later apply to do so. It is not uncommon for such an order to be made. Indeed, in these matters, certain such orders were made quite late in the process. Such an application involves establishing that person’s interests may be affected, and that it is in the interests of justice that that person be joined as a party. If such an application is made belatedly, it may be necessary to consider why its timing was so late as relevant to the interests of justice. However, the point is that this particular pastoralist has at no time sought to be a party to the proceeding, and so this pastoralist’s consent to the proposed determination was not required: s 87A(1)(c)(v).
The second reason is that, on the material available, I am satisfied that the pastoralist has been aware not just of the Adnyamathanha No 1 Native Title Claim, but of its progress towards the proposed determination, for many months extending back to 2008. There is no reason why the concerns now informally expressed could not have been earlier expressed. There is no explanation proffered for the very late informal expression of concerns. It is entirely inconsistent with the orderly management of any proceeding, and particularly one with a significant number of parties and with such complexity and which has required the careful and detailed consideration and negotiations of all the parties to reach its present point, that a person who has been aware of the process for some time should, by an informal side wind, be in a position to frustrate the outcome of that process.
It is necessary to go beyond the formal requirements of the NT Act. Under both ss 87 and 87A, in order to make the proposed consent determinations of native title without holding a hearing, the Court must be satisfied that such order would be within its power and that it would be appropriate to do so.
Because the Orders sought contain a determination of native title, they must comply with s 94A of the NT Act. That section requires the proposed orders set out details of the matters mentioned in s 225 of the NT Act. Section 225 defines a determination of native title as:

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 interest confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

“Native title rights and interests” are defined in s 223(1) of the NT Act as:

the communal, group or individual rights and interests of Aboriginal peoples ... 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...; and

(b) the Aboriginal peoples..., 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.

The evidence before the Court in support of the applications includes a Native Title Report from an anthropologist, the evidence taken during a preservation of evidence hearing, and witness statements.
The Native Title Report (the Ellis Report) was prepared by Bob Ellis, an anthropologist with thirty years of experience working with the Adnyamathanha people. The Ellis Report was accompanied by the Adnyamathanha Genealogy, a published work on Adnyamathanha families that is being relied on as establishing the relevant families that make up the Adnyamathanha society. Mr Ellis also interviewed six claimants on a number of topics identified by the State as requiring clarification.
In October 2007 the Court conducted a preservation of evidence hearing at Hawker and at a number of sites around the Flinders Ranges. Two senior Adnyamathanha men, Ken McKenzie and Stuart Patterson, gave evidence over three sitting days.
Thirteen witness statements were gathered from the Adnyamathanha claimants to address outstanding issues following the Ellis Report and the preservation of evidence hearing.
All the material was assessed by the State’s expert anthropologist, Dr David Martin. Based on Dr Martin’s assessment, the State identified certain outstanding issues requiring further clarification which were addressed by way of the material in the witness statements.
In support of the applications for consent determinations of native title, the State of South Australia has filed extensive written submissions on behalf of the State and the claimants. Those submissions refer to the Ellis Report, the interviews, the transcript from the preservation of evidence hearing and the witness statements, which all speak of the Adnyamathanha people and their connection to the claim area.
The relevant native title claim group, the Adnyamathanha people, and its society, is clearly identified (and is a relevant society for the purposes of s 223 of the NT Act). The term “Adnyamathanha” refers to a much larger group than that term originally described, and the evidence shows that different researchers have identified different “tribes” or language groups within the claim area, some of which are well supported, the other more inferential or doubtful. Despite this, the interviews and witness statements substantiate contemporary custom of claimants to identify as Adnyamathanha whilst acknowledging they are also, for example, Kuyani, Pirlatapa, Wailpi or Yadliyawara. There are a number of other subgroups. The Ellis Report shows that the contemporary Adnyamathanha society is comprised of those traditionally closely related groups, and that the ethnographic records suggest those groups have a long history of inter-marriage, co-residence and joint ceremonial activities allowing them to be characterised as an appropriate traditional society for native title purposes (Ellis Report at [145]).

I am satisfied that the level of detail provided by the applicants to identify the native title claim group and its society satisfies the requirements of the NT Act.

The evidence also addresses the relationship between the claim group’s society and the society in the determination area at sovereignty. The earliest recorded ancestors for the contemporary Adnyamathanha society are traced back to the mid-19th century. The evidence shows that those ancestors were living and observing traditional laws and customs in the relevant areas at that time. It is easy to infer that ancestors of those persons occupied the proposed determination area at sovereignty, and that the current claim group is directly linked to them.
The evidence shows a substantially uninterrupted observance of traditional laws and customs since sovereignty, albeit not necessarily homogenous in the level of its observation, and notwithstanding varying levels of knowledge and enforcement amongst the Adnyamathanha people. One of the key features of the normative society is the division of the Adnyamathanha people into two matrilineal moieties, Matheri and Arraru. Its importance is recognised and observed by all the Adnyamathanha people interviewed, including younger claimants. The moiety system retains its significance to the younger generation. The moieties traditionally governed many other aspects of Adnyamathanha life, including ceremonial practice, burial arrangement and decision making processes. The latter is evident through the composition of boards dealing with land issues such as the Vulkathunha Gammon Ranges National Park Co-Management Board, where equal numbers of Matheri and Arraru people are appointed to the board, and other boards representative of the Adnyamathanha people.
In addition, the continued use of the Adnyamathanha language amongst many of the Adnyamathanha people, including in social contexts where it is often the language of choice, and the encouragement to the younger generations to continue its vibrancy is a strong identifier of ongoing Adnyamathanha custom and identity. So too is the ongoing knowledge of muda (also mura) or Dreaming traditions. That was particular evident during the preservation evidence of Ken McKenzie, as well as in other statements and interviews. The Adnyamathanha people have been promoting and protecting their cultural heritage for many years, including establishing structures for the identification and protection of sites through the cultural and educational centre at Iga Warta near Nepabunna.
There are additionally, other laws and customs for which there is contemporary evidence including:

• The traditional way to butcher and cook kangaroo;

• Speaking with and respecting spirits in the land;

• Age based hierarchy;

• Physically maintaining and protecting sites of significance; and

• Maintaining gender and status based restrictions in relation to Dreaming Law.

In my view, the material demonstrates the uninterrupted observance of many traditional laws and customs since sovereignty by the Adnyamathanha people, thereby defining their society, by actively promoting and protecting their cultural heritage for many years.
The evidence further demonstrates a connection to the determination area by the group’s traditional laws and customs. In particular, the key criteria by which the Adnyamathanha people assert rights and interests in a claim area is descent from an Adnyamathanha ancestor. It shows that the Adnyamathanha country is for all Adnyamathanha people, even though there are some areas where particular people should be consulted about particular parts of the claim area because of their special associations with it. Those associations derive from seniority, and in earlier times seniority associated with initiation ceremonies, and particular historical connections through ancestry and exposure to those areas.
The material before the Court also shows that the Adnyamathanha people are recognised by other Aboriginal people as controlling the enjoyment of rights and interests in the claim area. That is exposed by contacts from other Aboriginal people to Iga Warta and Nepabunna seeking permission to visit the area.
Further, the relationship between the laws and customs of the Adnyamathanha people and the rights and interests claimed by the applicants is demonstrated by the practising of all the rights and interests claimed by the Adnyamathanha people, both by those who still live on the country and by those who make conscious efforts to return to the area and engage in traditional activities.

The material relied upon by the parties in support of the proposed consent determinations, in my view, adequately addresses the requirements of ss 223 and 225 of the NT Act and the appropriateness of making the proposed consent determinations. I accept their submission that the Ellis Report and the interviews and evidence support the recognition of native title rights and interests possessed by the native title claim group, as defined by s 223 and explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422.

I also conclude on the basis of the material before me that the parties likely to be affected by the proposed consent determination have had sufficient access to independent legal representation; and that the State of South Australia, in providing its consent, has given appropriate consideration to the evidence and to the interests of the community generally; see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29]. Indeed, the material suggests that both the applicants and the State have carefully considered all the material and its significance, and the State has, in particular, assessed that material as part of its process outlined in the State’s policy document Consent Determinations in South Australia: A Guide to Preparing Native Title Reports (the State’s CD Policy).
I have also considered the terms of the proposed consent determinations. In my view, they satisfy the requirements of s 225 of the NT Act. They are carefully worded. They define the group of native title holders and the criteria by which they have group membership in a satisfactory way. The native title rights and interests are in appropriately specific terms. They express rights and interests which would be recognised by the laws of Australia. The nature and significance of the other interests in the areas of the proposed consent determinations are also clearly spelled out, as is the consequence of those other interests, both as they presently affect the agreed native title rights and interests, and in the longer term as to how the native title rights and interests will become more enlivened as those other interests come to an end progressively over time. I consider that each of the requirements of s 225(a) to (e) is satisfied. I am also satisfied that the issues of extinguishment have been adequately addressed.
Where the Court proposes to make a determination that native title exists it must determine whether the native title is to be held in trust and if so by whom: s 55 and 56(1) of the NT Act. The determinations envisage that the native title is not to be held in trust. There is a timetable for the Adnyamathanha Traditional Lands Association to amend its constitution so that it can perform the role of a prescribed body corporate under s 57 of the NT Act.

CONCLUSION

I am satisfied that it is within the power of the Court, and appropriate in the circumstances, to give effect to the proposed determinations without a full hearing of the native title applications. I therefore make the orders and determinations which are contained in the Orders now made by the Court.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Mansfield.

Associate:

Dated: 17 April 2009

Counsel for the Applicants:	G Harbord, R Bradshaw and A Collett

Solicitor for the Applicants:	Johnston Withers

Counsel for the First Respondent:	P Tonkin

Solicitor for the First Respondent:	Crown Solicitor for South Australia

Counsel for Sydney Nicholls (Angepena Pastoral Co):	M Durrant

Solicitor for Sydney Nicholls (Angepena Pastoral Co):	Kelly & Co

Date of Hearing:	30 March 2009

Date of Ruling:	30 March 2009

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 6001 of 1998 SAD 6002 of 1998

BETWEEN:	GORDON COULTHARD, ANGELINA STUART, GERALDINE (THATHY) ANDERSON, VINCENT COULTHARD, STEWART PATTERSON, BEVERLEY PATTERSON, MARK MCKENZIE ON BEHALF OF THE ADNYAMATHANHA PEOPLE Applicants
AND:	THE STATE OF SOUTH AUSTRALIA & OTHERS Respondents
BETWEEN:	MARK McKENZIE & OTHERS ON BEHALF OF THE ADNYAMATHANHA PEOPLE Applicants
AND:	THE STATE OF SOUTH AUSTRALIA & OTHERS Respondents

JUDGE:	MANSFIELD J
DATE OF ORDER:	30 MARCH 2009
WHERE MADE:	NEPABUNNA

THE COURT NOTES THAT:

This determination covers that part of the area covered by the Adnyamathanha No.1 Native Title Determination Application (SAD 6001 of 1998) (“the Adnyamathanha No.1 Claim”) as defined in Paragraph 2. The Adnyamathanha No.1 Claim has not previously been determined.
The Parties to the determination (“the Parties”) agree that those areas listed in Schedule 2 are not included in the Determination Area having been excluded by the Claimants’ application for a determination of native title.

The Parties have now reached agreement as to the terms of a determination of native title to be made in relation to the Determination Area. They have filed an agreement in writing with this Court pursuant to section 87A (1) of the Native Title Act 1993 (Cth) (“the Native Title Act”) to seek the making of consent orders for a determination.

The Parties acknowledge that the effect of the making of this determination will be that those people described in paragraph 6, in accordance with their traditional laws and customs, will be recognised as the native title holders for the Determination Area (“the Native Title Holders”).
The Parties have requested that the Court make a determination over the Determination Area without a trial.

BY CONSENT THE COURT MAKES THE FOLLOWING DETERMINATION OF NATIVE TITLE PURSUANT TO SECTION 87A OF THE NATIVE TITLE ACT:

In this determination, including its schedules, unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Part 15 of the Native Title Act.
In this determination, “the Determination Area” means that part of the area of the Adnyamathanha No.1 Claim as described in Schedule 1 (and shown in the Map forming part of that Schedule) otherwise known as Angepena Pastoral Station apart from those excluded areas which are described in Paragraph 16 and in Schedule 2.
In this determination including its schedules, in the event of an inconsistency between a description of an area in a schedule and the depiction of that area on the map in Schedule 1, the written description shall prevail.

Existence of Native Title

Subject to paragraphs 12 to 16 herein, native title exists in the Determination Area.
Native title does not exist in relation to the areas and resources described in Paragraphs 12, 15 and 16 herein.

The Native Title Holders

The Native Title Holders are those living Aboriginal people who:

(a) are the descendants (whether biologically or by adoption) of the following apical ancestors:

Mt Serle Bob
Polly, wife of Mt Serle Bob
Quartpot Tommy
Mt Serle Bob’s sister, wife of Quartpot Tommy
Willy Austin Snr
Nicholas Demell
Emily McKenzie, wife of Nicholas Demell
Sydney Ryan
Mary, wife of Sydney Ryan
the siblings Angepena Billy or Mary
Fanny, wife of Angepena Billy
the siblings Sara Johnson, Matilda Johnson, Fred Johnson, Natalie Johnson, Jessie Johnson or Sydney Jackson, and

(b) identify as Adnyamathanha; and

(c) are recognised by other Native Title Holders under the relevant Adnyamathanha traditional laws and customs as having maintained an affiliation with, and continuing to hold native title rights and interests in, the Determination Area.

Native title rights and interests

Subject to paragraphs 8 and 9, the nature and extent of the native title rights and interests held by all Native Title Holders in relation to the Determination Area are rights to use, stay on and enjoy the land and waters of the Determination Area being:

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

(b) The right to live, to camp and to erect shelters on the Determination Area;

(d) The right to gather and use the natural resources of the Determination Area such as food, plants, timber, resin, ochre and soil;

(e) The right to cook and to light fires for cooking and camping purposes on the Determination Area;

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

(g) The right to distribute, trade or exchange the natural resources of the Determination Area;

(h) The right to conduct ceremonies and hold meetings on the Determination Area;

(i) The right to engage and participate in cultural activities on the Determination Area including those relating to births and deaths;

(j) The right to carry out and maintain burials of deceased native title holders and of their ancestors within the Determination Area;

(k) The right to teach on the Determination Area the physical and spiritual attributes of locations and sites within the Determination Area;

(l) The right to visit, maintain and preserve sites and places of cultural or spiritual significance to Native Title Holders within the Determination Area;

(m) The right to speak for and make decisions in relation to the Determination Area about the use and enjoyment of the Determination Area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders;

(n) The right to be accompanied on to the Determination 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 Determination Area; or

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

(iv) people invited by Native Title Holders to assist in, observe, or record traditional activities on the Determination Area.

The native title rights and interests described in paragraph 7 do not confer possession, occupation, use and enjoyment of the Determination Area on the native title holders to the exclusion of others.
The native title rights and interests are for personal, domestic and non-commercial communal use.
The native title rights and interests are subject to and exercisable in accordance with:

(a) the traditional laws and customs of the Native Title Holders;

(b) the valid laws of the State and Commonwealth, including the common law.

Nature and extent of other interests

The nature and extent of other interests in relation to the Determination Area are:

(a) The rights and interests of the holder of Pastoral Lease No 2259 (Crown Lease number Volume 1280 Folio 24);

(b) the interests of the Crown in right of the State of South Australia;

(c) the interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power;

(d) rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth;

(e) the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties (in accordance with any valid legislation);

(f) the rights and interests of Telstra Corporation Limited:

(i) as the owner or operator of telecommunications facilities within the Determination Area;

(ii) as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(iii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth);

(iv) for its employees, agents or contractors to enter the Determination Area to access its facilities in and in the vicinity of the Determination Area in the performance of their duties;

(g) the rights, interests and entitlements of ETSA Utilities (a partnership of Spark Infrastructure SA (No.1) Pty Ltd, Spark Infrastructure SA (No.2) Pty Ltd, Spark Infrastructure SA (No.3) Pty Ltd, CKI Utilities Development Limited and HEI Utilities Development Limited) and its related and successor entities, including its rights, interests and entitlements:

(i) to exercise its entitlements and discharge its obligations as the owner and/or operator of electricity infrastructure (as defined in the Electricity Act 1996 (SA) (“Electricity Act”)) and telecommunications facilities and infrastructure within the Determination Area (“Existing Infrastructure”);

(ii) to exercise its entitlements and discharge its obligations as the holder of a licence under the Electricity Act and/or as an electricity entity under the Electricity Act;

(iii) to exercise its entitlements and discharge its obligations as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(iv) to install new electricity and telecommunications infrastructure within the Determination Area (“New Infrastructure”) and modify, maintain and repair Existing Infrastructure;

(v) under easements, leases or licences (whether registered, unregistered, statutory or otherwise) relating to Existing Infrastructure or New Infrastructure within the Determination Area (“Easements”);

(vi) to provide its employees, agents or contractors with access to Existing Infrastructure, New Infrastructure and the Easements within the Determination Area; and

(vii) to the extent permitted by law, to restrain any person from performing any act, or compel any person to perform any act, for the purposes of ensuring that ETSA Utilities complies with its obligations under any law, including, but not limited to, excluding any person from entering an area containing Existing Infrastructure or New Infrastructure for the purposes of maintaining the safety of any person and the security and protection of such infrastructure.

Native Title rights and interests do not exist in respect of those parts of the Determination Area being any house, shed or other building or airstrip or any dam or other stock watering point constructed pursuant to the pastoral lease referred to in Paragraph 11(a). These areas comprise the land on which the improvements of the kind referred to herein have been constructed prior to the date hereof and include any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvements referred to.
For the avoidance of doubt, Paragraph 12 does not preclude the possibility of further extinguishment, according to law, of native title over other limited parts of the Determination Area by reason of the construction of new pastoral improvements of the kind referred to in Paragraph 12 after the date of this determination.
The relationship between the native title rights and interests in the Determination Area that are described in Paragraph 7 and the other rights and interests that are referred to in Paragraph 11 (“the other rights and interests”) is that:

(a) the other rights and interests co-exist with the native title rights and interests;

(b) in the event of inconsistency, the other rights and interests prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them;

(c) the existence of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by, in accordance with or under the other rights and interests.

Native title rights and interests do not exist in:

(a) minerals as defined in section 6 of the Mining Act 1971 (SA); or

(b) petroleum; or

(d) a natural reservoir.

For the purposes of this Paragraph 15 and the avoidance of doubt:

(i) a geological structure (in whole or part) on or at the earth’s surface or a natural cavity which can be accessed or entered by a person through a natural opening in the earth’s surface is not a natural reservoir;

(ii) “geothermal energy”, petroleum, “regulated substance” and “natural reservoir” mean those terms as defined in section 4 of the Petroleum Act 2000 (SA);

(iii) the absence from this Order of any reference to a source of geothermal energy is not of itself to be taken as an indication of the existence or otherwise of native title rights and interests in a source of geothermal energy.

Native title rights do not exist in the areas covered by public works attributable to the State or Commonwealth (including the land defined in section 251D of the Native Title Act) which were constructed, established or situated prior to 23 December 1996 or commenced to be constructed or established on or before that date.
Public works constructed, established or situated after 23 December 1996 have had such effect on native title rights and interests as has resulted from Part 2 Division 3 of the Native Title Act.

AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS:

The native title is not to be held in trust.
Within six months of the date of this Order, a representative of the Native Title Holders is to file and serve a notice nominating:

(a) Adnyamathanha Traditional Lands Association (Aboriginal Corporation) (subject to appropriate amendments being made to its Constitution to enable it to fulfil the role of a prescribed body corporate); or

(b) An alternative Aboriginal and Torres Strait Islander corporation, the Constitution of which enables it to fulfil the role of a prescribed body corporate;

to be the prescribed body corporate for the purposes of section 57(2) of the Native Title Act and include with that notice the written consent of the body corporate.

Subject to further order, if a prescribed body corporate is nominated in accordance with paragraph 19 there will, without the need for a further order, be a determination that the prescribed body corporate so nominated is:

(a) to be the prescribed body corporate for the purposes of section 57(2) of the Native Title Act; and

(b) to perform the functions referred to in section 57(3) of the Native Title Act.

If no nomination is made in accordance with paragraph 19 within the period specified, or any further period the Court may order, the matter is to be listed for further directions.
The parties have liberty to apply on 14 days notice to a single judge of the Court for the following purposes:

(a) to establish the precise location and boundaries of the public works and adjacent land and waters referred to in Paragraphs 16 and 17 of this Order;

(b) to establish the effect on native title rights and interests of any public works referred to in Paragraph 17 of this Order; or

(c) to determine whether any particular area is included in the description in paragraph 12 or Schedule 2 of this Order.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

SCHEDULE 1 - Description and Map of the Determination Area

Comprising the whole of the land within the outer boundary of the Angepena Pastoral Lease, being the outer boundary of Allotment 207 in Filed Plan 43315, Out of Hundreds (Copley).

SCHEDULE 2 - Areas that have been excluded from the Determination Area

The following areas are agreed to have been excluded from the Determination Area by reason of the fact that native title has been extinguished in those areas:

1.1. Any areas in relation to which native title has been extinguished by an act attributable to the State of South Australia pursuant to any of the following sections of the Native Title (South Australia) Act 1994 (SA):

Sections 33 and 34 (Category A past acts);
Section 35 (Category B past acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests);

Sections 36B and 36C (Category A intermediate period acts);

Section 36D (Category B intermediate period acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests);
Sections 36F and 36G (previous exclusive possession acts other than “excepted acts”);

1.2. Any areas in relation to which native title has been extinguished by an act attributable to the Commonwealth of Australia pursuant to any of the following sections of the Native Title Act:

Section 15(1)(a), (b) (Category A past acts);
Section 15(1)(c) (Category B past acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests);

Section 22B(a), (b) (Category A intermediate period acts);

Section 22B(c) (Category B intermediate period acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests);
Sections 23B and 23C (previous exclusive possession acts).

1.3. Any areas in relation to which native title rights and interests have otherwise been wholly extinguished.

For the avoidance of doubt and without limiting the above, native title has been extinguished in relation to that part of the public road between Copley and Nepabunna which lies within the external boundaries of the Determination Area.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 6001 of 1998 SAD 6002 of 1998

BETWEEN:	GORDON COULTHARD, ANGELINA STUART, GERALDINE (THATHY) ANDERSON, VINCENT COULTHARD, STEWART PATTERSON, BEVERLEY PATTERSON, MARK MCKENZIE ON BEHALF OF THE ADNYAMATHANHA PEOPLE Applicants
AND:	THE STATE OF SOUTH AUSTRALIA & OTHERS Respondents
BETWEEN:	MARK McKENZIE & OTHERS ON BEHALF OF THE ADNYAMATHANHA PEOPLE Applicants
AND:	THE STATE OF SOUTH AUSTRALIA & OTHERS Respondents

JUDGE:	MANSFIELD J
DATE OF ORDER:	30 MARCH 2009
WHERE MADE:	NEPABUNNA

THE COURT NOTES THAT:

This determination covers that part of the area covered by the Adnyamathanha No.1 Native Title Determination Application (SAD 6001 of 1998) (“the Adnyamathanha No.1 Claim”) as defined in Paragraph 2. The Adnyamathanha No.1 Claim has not previously been determined.
The Parties to the determination (“the Parties”) agree that those areas listed in Part 1 of Schedule 2 are not included in the Determination Area having been excluded by the Claimants’ application for a determination of native title.

The Parties have now reached agreement as to the terms of a determination of native title to be made in relation to the Determination Area. They have filed an agreement in writing with this Court pursuant to section 87A (1) of the Native Title Act 1993 (Cth) (“the Native Title Act”) to seek the making of consent orders for a determination.

The State of South Australia asserts that the Vesting (as defined in Paragraph 2 (b)) of those parts of the Determination Area in the Crown listed in Schedule 3 (“the Schedule 3 Areas”) means that the exercise of all native title rights and interests in relation to those areas (whether exclusive or non-exclusive) were suppressed at the date of the Vesting, pursuant to the non-extinguishment principle established by the Native Title Act. Accordingly, all native title rights and interests in the Schedule 3 Areas remain suppressed for as long as those areas remain vested in the Crown under the National Parks and Wildlife Act 1972 (“the NPWA”) or other relevant State legislation.
The First and Second Applicants assert with regard to the Schedule 3 Areas that some native title rights are not suppressed by the Vesting but acknowledge the operation of the non-extinguishment principle provided for in the Native Title Act.
The Parties have agreed to the following orders in relation to the native title rights and interests, reflecting (insofar as those orders relate to the Schedule 3 Areas) a compromise of the issue addressed in Recitals D and E.
The Parties agree that section 47A of the Native Title Act applies to the Determination Area in respect to the areas covered by the interests listed at Schedule 4 and that prior extinguishment is to be disregarded over those areas in accordance with section 47A of the Native Title Act.
The Parties acknowledge that the effect of the making of this determination will be that those people described in paragraph 6, in accordance with their traditional laws and customs, will be recognised as the native title holders for the Determination Area (“the Native Title Holders”).
The Parties have requested that the Court make a determination over the Determination Area without a trial.

BY CONSENT AND PURSUANT TO SECTION 87A NATIVE TITLE ACT 1993 THE COURT MAKES THE FOLLOWING DETERMINATION OF NATIVE TITLE:

In this determination, including its schedules, unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Part 15 of the Native Title Act.
In this determination,

(a) “the Determination Area” means that part of the area of the Adnyamathanha No.1 Claim as described in Schedule 1 (and shown in the map forming part of that Schedule) apart from those excluded areas which are described in Paragraph 18 and in Schedule 2;

(b) “the Vesting” means the vesting of a Park or Reserve in the Crown pursuant to the NPWA as listed in Schedule 3.

In this determination including its schedules, in the event of an inconsistency between a description of an area in a schedule and the depiction of that area on the map in Schedule 1, the written description shall prevail.

Existence of Native Title

Subject to Paragraphs 12 to 18 herein, native title exists in the Determination Area.
Native title does not exist in relation to the areas and resources described in Paragraphs 13, 17 and 18 herein.

The Native Title Holders

The Native Title Holders are those living Aboriginal people who:

(a) are the descendants (whether biologically or by adoption) of the following apical ancestors:

Mt Serle Bob
Polly, wife of Mt Serle Bob
Quartpot Tommy
Mt Serle Bob’s sister, wife of Quartpot Tommy
Willy Austin Snr
Nicholas Demell
Emily McKenzie, wife of Nicholas Demell
Sydney Ryan
Mary, wife of Sydney Ryan
the siblings Angepena Billy or Mary
Fanny, wife of Angepena Billy
the siblings Sara Johnson, Matilda Johnson, Fred Johnson, Natalie Johnson, Jessie Johnson or Sydney Jackson, and

(b) identify as Adnyamathanha; and

Native title rights and interests

Subject to paragraphs 8, 9, 10 and 11, the nature and extent of the native title rights and interests held by all Native Title Holders in relation to the Determination Area are rights to use, stay on and enjoy the land and waters of the Determination Area being: