De Rose Hill-Ilpalka Aboriginal Corporation v State of South Australia [2013] FCA 989

FEDERAL COURT OF AUSTRALIA

De Rose Hill-Ilpalka Aboriginal Corporation v State of South Australia [2013] FCA 989 Citation: De Rose Hill-Ilpalka Aboriginal Corporation v State of South Australia [2013] FCA 989

Parties: DE ROSE HILL-ILPALKA ABORIGINAL CORPORATION RNTBC, ICN 4712 v STATE OF SOUTH AUSTRALIA and COMMONWEALTH OF AUSTRALIA

File number: SAD 140 of 2011

Judge: MANSFIELD J

Date of judgment: 1 October 2013

Date of hearing: 1 October 2013

Place: Ilpalka

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 1

Counsel for the Applicant: M Pagsanjan

Solicitor for the Applicant: South Australian Native Title Services Ltd

Counsel for the Respondent: S McCaul and S Hoffmann

Solicitor for the Respondent: Crown Solicitor's Office

Counsel for the Intervener Respondent: The Intervener did not appear

IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 140 of 2011

BETWEEN: DE ROSE HILL-ILPALKA ABORIGINAL CORPORATION RNTBC, ICN 4712

Applicant

AND: STATE OF SOUTH AUSTRALIA

Respondent

COMMONWEALTH OF AUSTRALIA

Intervener

JUDGE: MANSFIELD J DATE OF ORDER: 1 OCTOBER 2013 WHERE MADE: ILPALKA

THE COURT NOTES THAT:

1. On 9 June 2011, the De Rose Hill-Ilpalka Aboriginal Corporation RNTBC ICN 4712 (RNTBC) filed a Compensation Application (No. SAD 140 of 2011) (First Compensation Application) in which it sought a determination of compensation under s 50(2) of the Native Title Act 1993 (Cth) (NTA) in respect of compensation payable by the Respondent for certain acts which had extinguished native title in the areas subject to the native title determination in De Rose Hill v South Australia (No 2) (2005) 145 FCR 290 (De Rose Hill Determination) and in areas that had been excluded from the De Rose Hill Determination because native title had been extinguished in those areas. The First Compensation Application was authorised by the De Rose Hill native title holders. 2. Due to disagreement as to whether the RNTBC could claim compensation for past extinguishment of native title in areas not subject to the De Rose Hill Determination, on 19 February 2013 the De Rose Hill Native Title holders authorised Peter De Rose, Hughie Cullinan, Tjaruwa Anderson and Karina Lester on behalf of the De Rose Hill Compensation Claim Group, to file a new claim over particular areas of extinguishment. A further Native Title Compensation Application (No. SAD 55 of 2013) (Second Compensation Application) was filed on 19 March 2013. 3. By consent, the First Compensation Application is to be dismissed and the RNTBC (the Applicant in the First Compensation Application) is joined as a Second Respondent to the Second Compensation Application. 4. The Applicant and the Respondent have reached agreement (Compensation Agreement) as to all of the compensation payable under the NTA by the Respondent in relation to all of the land covered by the First and Second Compensation Applications (Agreement Area) as set out in Schedule 1 to the Orders made in the Second Compensation Application on 1 October 2013. 5. Pursuant to s 87(1) of the NTA, the Applicant and the Respondent have reached agreement on the terms of the orders (including a determination of compensation over the area of the Second Compensation Application (Determination Area) which they ask the Court to make in relation to the proceeding and the terms of the agreement in writing signed by or on behalf of the parties have been filed with the Court. 6. The Applicant and the Respondent agree that the confidential payment by the First Respondent to the Applicant referred to in the Compensation Agreement comprises full and just (in the sense required by ss 51 and 53 of the NTA) compensation for any acts attributable to the Respondent (or for which the Respondent is liable to pay compensation) in the Agreement Area (comprising the Determination Area and the area of the De Rose Hill Determination) up to the date of the determination made in the Second Compensation Application including those acts identified in Schedules 2 and 3 of the Orders made on that Application. 7. The Commonwealth intervened in both the First and the Second Compensation Applications as of right (pursuant to s 84A(1) NTA). The Commonwealth does not consent but does not oppose the orders sought by the remaining parties to this matter. Being satisfied that a determination in the Second Compensation Application in the terms sought by the parties would be within the power of the Court and it appearing to the Court appropriate to do so and by the consent of the parties and to give effect to the Compensation Agreement: