Editors --- "Anderson on behalf of the Spinifex People v State of Western Australia - Case Summary" [2001] AUIndigLawRpr 31; (2001) 6(3) Australian Indigenous Law Reporter 25

• Anderson On Behalf Of The Spinifex People V State Of Western Australia
• Facts:
• Terms Of The Agreement:
• Held:

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Court and Tribunal Decisions - Australia

Anderson on behalf of the Spinifex People v State of Western Australia

Federal Court of Australia (Black CJ)

28 November 2000

[2000] FCA 1717

Native title — application under Native Title Act 1993 (Cth) — agreement between parties as to rights and interests — whether an order is within the power of the court — formal requirements — whether an order is appropriate — judgement by consent — Court’s view of judgements by consent in native title claims

Facts:

An application for recognition of native title was first lodged with the National Native Title Tribunal on 3 October 1995 by a number of persons on behalf of the Peoples of the Spinifex. Pursuant to transitional provisions after amendments in 1998 to the Native Title Act 1993 (Cth), the application was deemed to have been made to the Federal Court on 30 September 1998. The application was amended to comply with changes to the Native Title Act. The amended application named Mark Anderson as the applicant on behalf of the Spinifex People.

Terms of the agreement:

The determination area is in the Great Victoria Desert. It extends over some 55, 000 square kilometres and covers the southern portion of the Desert, west from the western border of South Australia. It is adjacent to the northern margin of the Nullarbor Plain and includes the northern portion of the Great Victoria Desert Nature Reserve and the southern section of the Central Australian Aboriginal Reserve.

The agreement divides the determination area into two parts. The content of native title rights is the same for each part. The native title rights and interests are:

(a) a right to possess, occupy, use and enjoy the land, including the right to live on the land;
(b) a right to make decisions about the use and enjoyment of the land;
(c) a right to hunt and gather (including ochre) and to take water, for the purposes of satisfying their personal, domestic, social, cultural, religious, spiritual or non-commercial communal needs, including the observance of traditional laws and customs;
(d) a right to maintain and protect sites of significance to the common law holders under their traditional laws and customs;
(e) a right as against any other Aboriginal group or individual to be acknowledged as the traditional Aboriginal owners.

However, the native title rights and interests only confer possession, occupation, use and enjoyment of the land to the exclusion of all others for the northern portion (85 per cent of the area).

According to para 7.1, which applies to the northern portion of the determination area, ‘other rights and interests co-exist except in the case where they conflict with, and if there is conflict with, prevail over, the native title rights and interests’.

According to para 7.2, which applies to the southern portion, ‘other rights and interests prevail over the native title rights and interests’.

Paragraph 4(a) states that there shall be no native title rights in minerals and petroleum. Paragraph 4(b) limits the rights to subterranean waters.

Paragraph 6 makes native title rights subject to the laws of the State and Commonwealth, as well as the traditional laws and customs of the native title holders.

The Third Schedule sets out the other interests that may affect native title rights. These include rights in respect of the Great Victorian Desert Nature Reserve, the right of members of the public to use the Serpentine Lakes Road, and any rights of the Crown or members of the public arising either out of common law, statute or a valid executive act.

Held:

1. Courts have always encouraged parties to settle their claims amicably. Agreement is especially desirable in native title cases due to the importance, complexity and sensitivity of the issues involved. Agreement between the parties minimises cost and distress and establishes goodwill between the parties for future dealings. North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 596 followed.

2. An order in the terms sought would satisfy the formal requirements under s 94A (see s 225) of the Native Title Act.

3. An expert report accurately associates the claimants with the country they are claiming. The same report contains archaeological evidence that the customs of the Spinifex People go back many thousands of years. The report documents the late contact of the Spinifex people with Europeans, the impact of Cundeelee Mission, the declaration of various reserves, and atomic testing at Maralinga.

The report shows that Spinifex traditional laws and customs have been left intact. Spinifex culture is very complex. It has very strong links to the land. It is not easily broken into component parts. The report, however, does show how each of the native title rights claimed is grounded in the traditional laws of the Spinifex people.

4. There is nothing before the Court to suggest that there are other claims in respect to the determination area.

5. The requested order is, therefore, appropriate. The court finds that the order is within the power of the Court and therefore, under s 87 of the Native Title Act, the Court may make such an order without holding a hearing.