Adnyamathanha No 1 Native Title Claim Group v The State of South Australia [2009] FCA 358

FEDERAL COURT OF AUSTRALIA

Adnyamathanha No 1 Native Title Claim Group v The State of South Australia [2009] FCA 358

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

MANSFIELD J

19 MARCH 2009

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 6001 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

JUDGE: MANSFIELD J

DATE OF ORDER: 19 MARCH 2009

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT:

1. The hearing of the proposed consent determinations in respect of these proceedings be confirmed for 30 March 2009, with a separate consent determination to be entered in relation to Angepena Station. 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

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

JUDGE: MANSFIELD J

DATE: 19 MARCH 2009

PLACE: ADELAIDE

REASONS FOR RULING 1 This is an application for separate determinations of native title under s 61(1) of the Native Title Act 1993 (Cth) (the NT Act) in respect of an area described in the oral application as covering a single pastoral lease in the Adnyamathanha No 1 Native Title Claim, Angepena Station (the Angepena area) as well as over a much larger, but not the entire, area of the Adnyamathanha No 1 Native Title Claim. 2 The three proposed consent determinations relate to two claims made under the NT Act. The first is the Adnyamathanha No 1 Native Title Claim, a claim over a very substantial area of South Australia extending roughly from the eastern boundary of Lake Torrens beyond the eastern boundary of Lake Frome almost to the border with New South Wales, and in the north from the Strzelecki Ranges to its southern boundary being a line more or less running east from Port Augusta. The second claim is the Adnyamathanha No 2 Native Title Claim, which is entirely within the boundaries of the Adnyamathanha No 1 Native Title Claim, over the Flinders Ranges National Park. 3 It is proposed that only part of the Adnyamathanha No 1 Native Title Claim area presently be the subject of consent determinations, and that there be two consent determinations over that part of the claim area. The smaller part is the Angepena area, east of Copley. The larger part is over much of the claim area, excluding a section in its northern region where, presently, there is an overlapping claim by the Dieri people and a section in its southern and eastern sections in respect of which there is ongoing negotiations between the parties but where (I am informed) the material to support connection (see s 223 of the NT Act) requires further research or analysis. The parties through counsel have indicated that they are confident that, within the next several months, those issues will be resolved and the balance of the Adnyamathanha No 1 Native Title Claim will also proceed to a consent determination. 4 The third proposed consent determination is over the Adnyamathanha No 2 Native Title Claim. 5 These reasons explain why I propose to accede firstly to the applications of the claimants in the Adnyamathanha No 1 Native Title Claim to make consent determinations at this point, notwithstanding that it appears likely that a consent determination over the whole of the claim area will be sought within the next several months, and secondly to the making of a separate consent determination over the Angepena area. The claimants' applications are supported by the State of South Australia, and are not opposed by any other respondent party. 6 Each application is made under s 87A of the NT Act. Section 87A was introduced into the NT Act by the Native Title Amendment Act 2007 (Cth), Sch 2 cl 35. It provides: Power of Federal Court to make determination for part of an area Application (1) This section applies if: (a) there is a proceeding in relation to an application for a determination of native title; and (b) at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) included in the area covered by the application; and (c) all of the following persons are parties to the agreement: (i) the applicant; (ii) each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made; (iv) each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made; (v) each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made; (vi) each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made; (vii) the Commonwealth Minister, if the Commonwealth Minister is a party to the proceeding at the time the agreement is made or has intervened in the proceeding at any time before the agreement is made; (viii) if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made; (ix) any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and (d) the terms of the proposed determination are in writing and signed by or on behalf of each of those parties. Proposed determination may be filed with the Court (2) A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court. Certain parties to the proceeding to be given notice (3) The Registrar of the Federal Court must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court. Order may be made (4) The Court may make an order in, or consistent with, the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that: (a) an order in, or consistent with, the proposed determination would be within its power; and (b) it would be appropriate to do so.