FEDERAL COURT OF AUSTRALIA Lander v State of South Australia [2014] FCA 125 Citation: Lander v State of South Australia [2014] FCA 125 Parties: EDWARD LANDER AND OTHERS NAMED IN THE SCHEDULE OF PARTIES v STATE OF SOUTH AUSTRALIA AND OTHERS NAMED IN THE SCHEDULE OF PARTIES File number: SAD 163 of 2008 Judge: WHITE J Date of judgment: 26 February 2014 Catchwords: NATIVE TITLE – consent determination – approach to resolution by agreement of claim for determination of native title – whether orders under s 87A of the Native Title Act 1993 (Cth) appropriate and within the Court's power Legislation: Native Title Act 1993 (Cth), ss 55, 56, 66, 87, 87A, 94A, 223, 225 Cases cited: Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154; (2012) 208 FCR 505 Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 King v State of South Australia [2011] FCA 1386; (2011) 285 ALR 454 Lander v State of South Australia [2012] FCA 427 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 Nelson v Northern Territory of Australia [2010] FCA 1343; (2010) 190 FCR 344 Risk v Northern Territory of Australia [2006] FCA 404 Smith v Western Australia [2000] FCA 1249; (2000) 104 FCR 494 Date of hearing: 26 February 2014 Place: Port Augusta Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 58 Counsel for the Applicants: Mr Stephen Kenny Solicitor for the Applicants: Camatta Lempens Counsel for the State of South Australia: Mr Peter Tonkin Solicitor for the State of South Australia: Crown Solicitor's Office (SA) Counsel for Epic Energy South Australia Pty Ltd: Mr Ewan Vickery Solicitor for Epic Energy South Australia Pty Ltd: Minter Ellison Counsel for Broshul Pty Ltd and Mumwil Pty Ltd: Mr Tim Mellor Solicitor for Broshul Pty Ltd and Mumwil Pty Ltd: Mellor Olsson Counsel for South Australian Native Title Services Ltd: Mr Andrew Beckworth Solicitor for South Australian Native Title Services Ltd: South Australian Native Title Services Ltd IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 163 of 2008 DIERI NO 2 NATIVE TITLE CLAIM BETWEEN: EDWARD LANDER AND OTHERS NAMED IN THE SCHEDULE OF PARTIES Applicant AND: STATE OF SOUTH AUSTRALIA AND OTHERS NAMED IN THE SCHEDULE OF PARTIES Respondent JUDGE: white j DATE OF ORDER: 26 February 2014 WHERE MADE: port augusta THE COURT NOTES THAT: A. This determination covers part of the land and waters which: (a) are subject to the Dieri No 2 Native Title Determination Application (SAD 163 of 2008) ("the Dieri No 2 Claim"); and (b) form part of the undetermined area of the Adnyamathanha No 1 Native Title Determination Application (SAD 6001 of 1998) ("the Adnyamathanha claim") which overlaps the Dieri No 2 Claim. B. This determination is being made together with a consent determination over the remaining part of the Dieri No 2 claim in favour of the Adnyamathanha People. C. The Parties to this determination ("the Parties") agree that those areas listed in Schedule 2 are not included in the Determination Area having been excluded by the Applicants' applications for a determination of native title. D. 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. E. The Parties acknowledge that the effect of the making of this determination will be that those Dieri 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. F. The Parties have agreed that the prospective registered native title body corporate in respect of the Determination Area, Dieri Aboriginal Corporation RNTBC, may have liberty to apply to seek a variation of the determination of native title in this matter, as it relates to pastoral improvements in the Determination Area in the event that the ruling of the Federal Court of Australia in De Rose v South Australia (No.2) [2005] FCAFC 110; (2005) 145 FCR 290 with respect to pastoral improvements is overturned, set aside or otherwise found to be an incorrect legal ruling by the High Court of Australia in the context of an appeal to the High Court of Australia from the decision of the Federal Court of Australia in Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154; (2012) 208 FCR 505. G. 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 SECTIONS 87A OF THE NATIVE TITLE ACT: 1. 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. 2. In this determination: (a) "Determination Area" means that part of the land and waters of the Dieri No 2 Claim and the overlapping part of the Adnyamathanha No 1 claim as is described in Schedule 1 (and shown in the maps forming part of that Schedule), apart from those excluded areas which are described in Paragraph 16 and in Schedule 2 ("excluded areas"); (b) "Adnyamathanha Determination Area" means the area of the consent determination being made in favour of the Adnyamathanha people over the remaining area of the Dieri No 2 claim. 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 4. Subject to Paragraphs 12 to 16 herein, native title exists in the Determination Area. 5. Native title does not exist in relation to the areas and resources described in Paragraphs 12, 15 and 16 herein. The Native Title Holders 6. The Native Title Holders in relation to the Determination Area are those living Aboriginal persons who are described in Schedule 3 who: (a) identify as Dieri; and (b) are recognised by other Native Title Holders under the relevant Dieri 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 7. Subject to Paragraphs 8, 9 and 10, the nature and extent of the native title rights and interests held by the Native Title Holders 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; (c) The right to hunt and fish 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 of the Determination Area; (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. 8. 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. 9. The native title rights and interests are for personal, domestic and non-commercial communal use. 10. 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. For the avoidance of doubt, the native title rights and interests expressed in Paragraph 7(f) are subject to the Natural Resources Management Act 2004 (SA). Nature and extent of other rights and interests and Relationship with Native Title 11. The nature and extent of other rights and interests in relation to the Determination Area are: (a) The rights and interests within the Determination Area created by the pastoral leases described in Schedule 4; (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) 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), including: (1) to inspect land; (2) to install and operate existing and new telecommunications facilities; (3) to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunications facilities, including cabling, customer terminal sites and ancillary facilities; and (iii) 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; (iv) under any leases, licences, access agreements or easements relating to its telecommunications facilities in the Determination Area; 12. 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 leases 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. 13. 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. 14. Subject to Paragraph 15, 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; and (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. 15. 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, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA); or (c) a naturally occurring underground accumulation of a regulated substance as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; or (d) a natural reservoir, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; (e) geothermal energy, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA) the source of which is below a depth of 100 metres from the surface of the earth. For the purposes of this Paragraph 15 and the avoidance of doubt: (i) a geological structure (in whole or in 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) thermal energy contained in a hot or natural spring is not geothermal energy as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA); (iii) the absence from this order of any reference to a natural reservoir or a naturally occurring accumulation of a regulated substance, as those terms are defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), above a depth 100 metres below the surface of the earth or geothermal energy the source of which is above a depth of 100 metres below the surface of the earth is not, of itself, to be taken as an indication of the existence or otherwise of native title rights or interests in such natural reservoir, naturally occurring accumulation of a regulated substance or geothermal energy. 16. 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. 17. 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: 18. The native title is not to be held in trust. 19. In respect of the Determination Area, Dieri Aboriginal Corporation RNTBC is to: (a) be the prescribed body corporate for the purposes of section 57(2) of the Native Title Act; and (b) perform the functions mentioned in section 57(3) of the Native Title Act after becoming the registered native title body corporate in relation to Part 1 of the Determination Area. 20. The Native Title Holders (through Dieri Aboriginal Corporation RNTBC), the State or any other Respondent 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 any 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; (c) to determine whether any particular area is included in the description in Paragraph 12 or Schedule 2 of this Order; or (d) to address, if appropriate, any changes to paragraphs 12 and 13 above in light of the decision of the High Court of Australia in State of Western Australia v Brown & Others (No P37 of 2012 HCA) as it relates to pastoral improvements. AND THE COURT MAKES THE FOLLOWING ANCILLARY ORDERS PURSUANT TO SECTION 87A(5) OF THE NATIVE TITLE ACT: 21. The Court notes in relation to the Determination Area as follows: (a) The Dieri People and the Adnyamathanha People have entered into a Memorandum of Understanding between them in the terms of the document comprising the "Annexure A" to Schedule 5, under which both groups agree in particular that: (i) the Adnyamathanha People hold traditional rights and interests in the Determination Area; (ii) the Dieri People hold traditional rights and interests in the Adnyamathanha Determination Area; (b) The Agreement provides that the traditional rights and interests referred to in sub-paragraph (a): (i) are not native title rights and interests; and (ii) co-exist with the native title rights and interests. (c) The State and other Respondent parties are not bound by the Memorandum of Understanding referred to in Paragraph 22(a) but acknowledge that the provisions of relevant State and Commonwealth legislation apply according to their terms from time to time in relation to the Determination Area. (d) The consent determination made in relation to the Adnyamathanha Determination Area is in the terms of the document comprising Schedule 6. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SCHEDULE 1 - Description and Map of the Determination Area External boundary description The Determination Area is located wholly within and comprises all the land and waters bounded by the following line: Commencing at the intersection of the western boundary of Wilpoorinna Pastoral Lease - Block 1122, OH(Marree) with Latitude 29.764891 South; then generally north-easterly in straight lines connecting the following coordinate points Longitude (East) Latitude (South) 138.594515 29.701424 138.795702 29.581792 138.961899 29.467992 139.189327 29.289997 139.279715 29.196623 139.370103 29.149934 139.375935 29.152852 139.380983 29.156313 Then south-easterly in a straight line to the intersection of the south-western shoreline of Lake Blanche (Deposited Plan 33310 Allotment 2008) with Longitude 139.384583 East; then generally south-easterly along the said shoreline of Lake Blanche to Longitude 139.781381 East; then generally south-westerly and north-westerly in straight lines connecting the following coordinate points Longitude (East) Latitude (South) 139.775627 29.447571 139.771817 29.449001 139.759949 29.444512 139.756934 29.442290 139.748206 29.440069 139.740272 29.435784 139.728371 29.426898 139.723899 29.420390 139.720196 29.420072 139.713450 29.419549 139.709740 29.420090 The latter coordinate being an intersection with Petermorra Creek. Generally south-westerly and southerly along the said Petermorra Creek, generally being straight lines connecting the following coordinate points Longitude (East) Latitude (South) 139.709240 29.420750 139.708550 29.421410 139.707740 29.422210 139.706900 29.423030 139.705700 29.424800 139.704220 29.425730 139.697380 29.428440 139.696990 29.428600 139.694580 29.429570 139.690840 29.430690 139.689520 29.431120 139.688100 29.431580 139.686420 29.433140 139.684450 29.433980 139.682870 29.434980 139.680660 29.437250 139.679080 29.439610 139.679060 29.439630 139.677290 29.441540 139.676000 29.443200 139.675830 29.443770 139.674440 29.445040 139.673520 29.447610 139.671750 29.449670 139.669680 29.451820 139.668220 29.452070 139.666870 29.451580 139.664970 29.451540 139.662200 29.452160 139.660830 29.452220 139.660360 29.452240 139.658250 29.452750 139.655280 29.454360 139.653070 29.456460 139.650360 29.457520 139.647170 29.458650 139.645780 29.459280 139.644420 29.459900 139.641360 29.461580 139.639990 29.463990 139.639530 29.464800 139.638120 29.466570 139.636630 29.467160 139.634020 29.468390 139.632210 29.469670 139.631320 29.471810 139.630420 29.473010 139.628400 29.473740 139.626270 29.474390 139.624980 29.475730 139.624510 29.475650 139.623050 29.475560 139.621640 29.475940 139.620350 29.477060 139.618700 29.479070 139.617970 29.479680 139.615480 29.481980 139.617210 29.483500 139.617210 29.484180 139.616950 29.484630 139.616810 29.486210 139.615780 29.487340 139.614230 29.488240 139.613450 29.489360 139.611770 29.489700 139.611150 29.489990 139.610020 29.490970 139.609310 29.492620 139.608660 29.495560 139.608010 29.496120 139.606320 29.496500 139.605690 29.497020 139.605300 29.498480 139.604780 29.498930 139.603620 29.499610 139.602750 29.500890 139.602190 29.502760 139.601410 29.504120 139.601360 29.505550 139.601780 29.507610 139.601050 29.509400 139.601000 29.511110 139.602470 29.513550 139.603180 29.514950 139.603040 29.515860 139.602650 29.516530 139.602000 29.519240 139.601730 29.521830 139.601340 29.522850 139.601460 29.524990 139.601200 29.525330 139.601200 29.526570 139.600971 29.527625 139.600890 29.528000 139.601050 29.531870 139.600780 29.536390 139.600260 29.537740 139.600000 29.538040 139.598830 29.539430 139.598440 29.540220 139.598310 29.541120 139.598950 29.541910 139.598820 29.542700 139.598040 29.544280 139.596880 29.545740 139.596490 29.546640 139.595450 29.547880 139.593540 29.549110 139.593110 29.551260 139.591370 29.552960 139.591550 29.554760 139.591160 29.556000 139.591330 29.557610 139.591980 29.557900 139.592700 29.559160 139.592570 29.559950 139.591790 29.561410 139.589710 29.563890 139.589190 29.565130 139.589190 29.566030 139.589570 29.567160 139.589180 29.569980 139.589430 29.571000 139.589040 29.571900 139.588390 29.572580 139.587870 29.573930 139.588230 29.574800 139.588960 29.575870 the latter coordinate being an intersection of the said Petermorra Creek with Wattleowie Creek; then southerly along the said Wattleowie Creek, generally being straight lines connecting the following coordinate points Longitude (East) Latitude (South) 139.589150 29.576640 139.589150 29.577540 139.589530 29.578450 139.591070 29.580260 139.591670 29.581470 139.589660 29.585220 139.588340 29.585670 139.587700 29.586230 139.587310 29.587020 139.587300 29.587580 139.586910 29.588370 139.586910 29.590180 139.586390 29.591640 139.586380 29.593000 139.585860 29.593900 139.585990 29.594910 139.585600 29.595590 139.585590 29.598180 139.586350 29.600220 139.586350 29.601460 139.585940 29.603260 139.585430 29.606530 139.584900 29.607550 139.585800 29.609470 139.585680 29.611200 139.585670 29.611390 139.586310 29.611780 139.586310 29.613760 139.586820 29.614940 139.586950 29.615230 139.586550 29.616240 139.586680 29.617590 139.586420 29.618380 139.585800 29.619010 139.583830 29.620860 139.583650 29.622530 139.583940 29.623910 139.583730 29.626190 139.583540 29.627740 139.582370 29.629210 139.582270 29.629860 139.581670 29.630110 139.579780 29.631680 139.578870 29.633480 139.578980 29.640260 139.577940 29.642170 139.576900 29.643520 139.576380 29.644760 139.574820 29.646900 139.574430 29.647920 139.574410 29.649600 139.574250 29.650430 139.573380 29.651750 139.572860 29.653330 139.571560 29.654230 139.570650 29.655470 139.570230 29.657620 139.570120 29.659870 139.569210 29.661330 139.569080 29.662120 139.568810 29.665050 139.568630 29.667230 139.567370 29.669790 139.566780 29.670410 139.565660 29.670340 139.564520 29.671610 139.564320 29.673370 139.565080 29.675190 139.564610 29.676610 139.564960 29.679350 139.565000 29.681060 139.565110 29.684220 139.564850 29.684790 139.564850 29.685350 139.565750 29.687500 139.565740 29.688630 139.564820 29.689730 139.563790 29.691550 139.563790 29.692230 139.563270 29.693360 139.561970 29.694480 139.561580 29.695840 139.560800 29.696740 139.560410 29.697640 139.560400 29.700570 139.559870 29.702380 139.558450 29.704180 139.557920 29.706210 139.558750 29.708180 139.558040 29.709140 139.558030 29.710160 139.559000 29.711700 139.558920 29.713660 139.559180 29.714380 139.560080 29.715920 139.560980 29.716710 139.561630 29.717050 139.562780 29.718180 139.563940 29.719760 139.565230 29.720900 139.566260 29.721460 139.567920 29.722660 139.568320 29.723430 139.570900 29.725540 139.572440 29.727350 139.573860 29.728250 139.574760 29.729270 139.575660 29.730060 139.576820 29.730740 139.577210 29.730740 139.579020 29.731540 139.579660 29.732100 139.581210 29.732790 139.582370 29.734140 139.582750 29.735380 139.583520 29.736970 139.584680 29.738550 139.585580 29.740580 139.586210 29.743970 139.585940 29.746790 139.586031 29.747900 139.586060 29.748260 139.586450 29.748930 139.586450 29.749500 139.587090 29.750850 139.588450 29.752640 139.589410 29.754440 139.590820 29.755940 139.593010 29.757410 139.594560 29.758770 139.595710 29.760940 139.597900 29.765100 139.598540 29.766570 139.599430 29.769840 139.599430 29.771190 139.599170 29.772100 139.598780 29.772430 139.598120 29.773670 139.597860 29.775030 139.597850 29.777510 139.597330 29.778520 139.596290 29.779420 139.596160 29.780330 139.596290 29.780350 139.597580 29.781910 139.597570 29.783940 139.598080 29.785070 139.599110 29.786200 139.599630 29.787440 139.599620 29.789140 139.599360 29.790150 139.598190 29.791840 139.597670 29.793190 139.595330 29.795900 139.593331 29.797535 the latter coordinate being the southern boundary of Murnpeowie Pastoral Lease – Deposited Plan 42203 Allotment 24; then generally westerly along the southern boundary of the said Allotment 24 to a south-eastern corner of the said Wilpoorinna Pastoral Lease; then generally westerly along the eastern boundary of the said Wilpoorinna Pastoral Lease to its intersection with the centreline of Frome River; then generally westerly along the said centreline of Frome River to its intersection with the western boundary of the said Block 1122, OH(Marree); then northerly along the said western boundary of Block 1122 to the point of commencement. Reference datum Geographical coordinates have been provided by the NNTT Geospatial services and geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees. Watercourses and water bodies (except Lake Blanche) referenced to 1:250,000 Topographic Mapping Series 3 – sourced from Geoscience Australia. Use of Coordinates Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographical data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. SCHEDULE 2 - Areas that have been excluded from the Determination Area 1. 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): a) Sections 33 and 34 (Category A past acts); b) Section 35 (Category B past acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests); c) Sections 36B and 36C (Category A intermediate period acts); d) 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); e) 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: a) Section 15(1)(a), (b) (Category A past acts); b) 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); c) Section 22B(a), (b) (Category A intermediate period acts); d) 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); e) 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. 2. For the avoidance of doubt and without limiting the above, Native Title has been extinguished in relation to areas in respect of which any of the following acts have been done by the Crown in right of the State of South Australia on or before 23 December 1996: 2.1. Freehold grants (other than pursuant to the Aboriginal Lands Trust Act 1966 (SA)); 2.2. Perpetual leases (other than leases which are subject to a reservation or condition expressly for the benefit of Aboriginal people); 2.3. Non-perpetual leases (other than pastoral leases or non-exclusive agricultural leases or leases subject to a reservation or condition expressly for the benefit of Aboriginal people), where: 2.4. in the case of grants to the Crown or a statutory authority, made prior to 31 October 1975 (or after 1 January 1994, if an "intermediate period act"); 2.5. in the case of grants other than to the Crown or a statutory authority, made prior to 1 January 1994 (or after 1 January 1994, if a "past act" or "intermediate period act"). 3. Native title rights have been extinguished over all roads which have been delineated in a public map pursuant to section 5(d)(II) of the Crown Lands Act 1929 (SA) or sections 70(3) or (4) of the Crown Land Management Act 2009 (SA) or which have otherwise been validly established pursuant to South Australian Statute or common law. SCHEDULE 3 – The descendants of Dieri Apical Ancestors The descendants (whether biologically or by adoption) of: a) Ruby Merrick and Tim Maltalinha (also known as Tim Merrick), who are the parents of the sibling set comprised of Martin, Gottlieb, Rebecca and Selma (or Thelma); b) Kuriputhanha (known as "Queen Annie"), mother of Karla-warru (also known as Annie); c) Mary Dixon (born at Killalpaninna), mother of the sibling set comprised of Dear Dear (known as "Tear"), Jack Garret, George Mungerannie, Joe Shaw and Henry; d) Bertha, mother of the sibling set comprised of Johannes and Susanna; e) Walter Kennedy, husband of Selma (also known as Thelma) nee Merrick; f) Florrie, wife of Martin Merrick; g) Clara Stewart (nee Murray), mother of Eddie Stewart; and h) The man from Pinngipania (born at Lake Hope) and the woman Kulibani (born at Kalamarina) who are the parents of Sam Tintibana (also known as Dindibana Ginjimilina). SCHEDULE 4 – Pastoral Leases wholly or partially in the Determination Area Pastoral Lease Name Pastoral Lease Number Crown Lease Number Volume/Folio Murnpeowie (part) PE 2519 CL 1598/37 Wilpoorinna (part) PE 2210 CL 1287/6 SCHEDULE 5 – The Memorandum of Understanding between the Adnyamathanha People and the Dieri People "Annexure A": The Memorandum of Understanding between Adnyamathanha native title claim group and Dieri native title claim group dated 29 July 2013 (varying Agreement dated 20 June 2006 – see "Annexure B", as redacted). SCHEDULE 5 – The Memorandum of Understanding between the Adnyamathanha People and the Dieri People "Annexure B": Agreement dated 20 June 2006 between Adnyamathanha native title claim group and Dieri native title claim group, with clause 5 redacted. SCHEDULE 6 – The terms of the Consent Determination to be made in favour of the Adnyamathanha People in the remainder of the Dieri No 2 Claim Area IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 6001 of 1998 ADNYAMATHANHA NATIVE TITLE CLAIM BETWEEN: VINCENT COULTHARD AND OTHERS NAMED IN THE SCHEDULE OF PARTIES Applicant AND: STATE OF SOUTH AUSTRALIA AND OTHERS NAMED IN THE SCHEDULE OF PARTIES Respondent JUDGE: WHITE J DATE OF ORDER: 25 february 2014 WHERE MADE: IKARa THE COURT NOTES THAT: A. This determination covers part of the land and waters which: (a) are subject to the Dieri No 2 Native Title Determination Application (SAD 163 of 2008) ("the Dieri No 2 Claim"); and (b) form part of the undetermined area of the Adnyamathanha No 1 Native Title Determination Application (SAD 6001 of 1998) ("the Adnyamathanha claim") which overlaps the Dieri No 2 Claim. B. This determination is being made together with a consent determination over the remaining part of the Dieri No 2 claim in favour of the Dieri People. C. The Parties to this determination ("the Parties") agree that those areas listed in Schedule 2 are not included in the Determination Area having been excluded by the Applicants' applications for a determination of native title. D. 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. E. The Parties acknowledge that the effect of the making of this determination will be that those Adnyamathanha 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. F. The Parties have agreed that the prospective registered native title body corporate in respect of the Determination Area, Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC, may have liberty to apply to seek a variation of the determination of native title in this matter, as it relates to pastoral improvements in the Determination Area in the event that the ruling of the Federal Court of Australia in De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 with respect to pastoral improvements is overturned, set aside or otherwise found to be an incorrect legal ruling by the High Court of Australia in the context of an appeal to the High Court of Australia from the decision of the Federal Court of Australia in Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154; (2012) 208 FCR 505. G. 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: 1. 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. 2. In this determination: 2.1 "Determination Area" means that part of the land and waters of the Dieri No 2 Claim and the overlapping part of the Adnyamathanha No 1 claim as is described in Schedule 1 (and shown in the maps forming part of that Schedule), apart from those excluded areas which are described in Paragraph 16 and in Schedule 2 ("excluded areas"); 2.2 "Dieri Determination Area" means the area of the consent determination being made in favour of the Dieri people over the remaining area of the Dieri No.2 claim. 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 4. Subject to Paragraphs 12 to 16 herein, native title exists in the Determination Area. 5. Native title does not exist in relation to the areas and resources described in Paragraphs 12, 15 and 16 herein. The Native Title Holders 6. The Native Title Holders in relation to the Determination Area are those living Aboriginal persons who are described in Schedule 3 who: 6.1 identify as Adnyamathanha; and 6.2 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 7. Subject to Paragraphs 8, 9 and 10, the nature and extent of the native title rights and interests held by the Native Title Holders are rights to use, stay on and enjoy the land and waters of the Determination Area, being: 7.1 The right to access and move about the Determination Area; 7.2 The right to live, to camp and to erect shelters on the Determination Area; 7.3 The right to hunt and fish on the Determination Area; 7.4 The right to gather and use the natural resources of the Determination Area such as food, plants, timber, resin, ochre and soil; 7.5 The right to cook and to light fires for cooking and camping purposes on the Determination Area; 7.6 The right to use the natural water resources of the Determination Area; 7.7 The right to distribute, trade or exchange the natural resources of the Determination Area; 7.8 The right to conduct ceremonies and hold meetings on the Determination Area; 7.9 The right to engage and participate in cultural activities on the Determination Area including those relating to births and deaths; 7.10 The right to carry out and maintain burials of deceased native title holders and of their ancestors within the Determination Area; 7.11 The right to teach on the Determination Area the physical and spiritual attributes of locations and sites within the Determination Area; 7.12 The right to visit, maintain and preserve sites and places of cultural or spiritual significance to Native Title Holders within the Determination Area; 7.13 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 of the Determination Area; 7.14 The right to be accompanied on to the Determination Area by those people who, though not Native Title Holders, are: 7.14.1 spouses of Native Title Holders; or 7.14.2 people required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area; or 7.14.3 people who have rights in relation to the Determination Area according to the traditional laws and customs acknowledged by the Native Title Holders. 8. 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. 9. The native title rights and interests are for personal, domestic and non-commercial communal use. 10. The native title rights and interests are subject to and exercisable in accordance with: 10.1 the traditional laws and customs of the Native Title Holders; 10.2 the valid laws of the State and Commonwealth, including the common law. For the avoidance of doubt, the native title rights and interests expressed in Paragraph 7(f) are subject to the Natural Resources Management Act 2004 (SA). Nature and extent of other rights and interests and Relationship with Native Title 11. The nature and extent of other rights and interests in relation to the Determination Area are: 11.1 The rights and interests within the Determination Area created by the pastoral leases described in Schedule 4; 11.2 the interests of the Crown in right of the State of South Australia; 11.3 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; 11.4 rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth; 11.5 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); 11.6 the rights and interests of Telstra Corporation Limited: 11.6.1 as the owner or operator of telecommunications facilities within the Determination Area; 11.6.2 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), including: (4) to inspect land; (5) to install and operate existing and new telecommunications facilities; (6) to alter, remove, replace, maintain, repair and ensure the proper functioning of its existing and any new telecommunications facilities, including cabling, customer terminal sites and ancillary facilities; and (i) 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; (ii) under any leases, licences, access agreements or easements relating to its telecommunications facilities in the Determination Area; (e) the rights and interests of Epic Energy South Australia Pty Ltd (formerly Tenneco Gas South Australia Pty Ltd) ("Epic"): (i) as: (A) holders of Pipeline Licence No. 1 (PL1) issued pursuant to the Petroleum Act 1940 (SA) on 12 March 1969 and renewed on 27 March 1990 pursuant to the Petroleum Act 1940 (SA) and continuing in force by the operation of clause 2 of the Schedule to the Petroleum Act 2000 (SA); and (B) owner of the pipeline the subject thereof by virtue of having been a purchaser of the pipeline (as purchaser is defined in section 16 of the Natural Gas Authority Act 1967 (SA) as amended by the Pipelines Authority (Sale of Pipelines) Amendment Act 1995 (SA) ("Sale Legislation") from the former Pipeline Authority of South Australia ("PASA"), now the Natural Gas Authority of South Australia ("NGASA") pursuant to a Sale Agreement dated 30 June 1995 under the Sale Legislation; (ii) where the licensed pipeline was established pursuant to the Natural Gas Authority Act 1967 (SA) and is located within a statutory easement established by section 9 of the Sale Legislation and section 28 of the Sale Legislation provides: "(1) The creation of the statutory easement under this Act, or the grant of a pipeline lease, does not affect any native title that may exist in the land to which the easement or lease relates. (2) The statutory easement or a pipeline lease under this Act does not derogate from pre-existing rights of Aboriginal people to enter, travel across or stay on land subject to the easement or lease."; (iii) the statutory easement entitles Epic, inter alia, to install, maintain and operate the pipeline and to carry out authorised purposes including the installation, operation, inspection, extension, alteration, repair and removal of the pipeline or associated equipment and the carrying out of maintenance work on the pipeline or associated equipment; (iv) for Epic, its employees, agents and contractors (or any of them) to enter the Determination Area to access Epic's rights and interests and to do all things necessary to exercise those rights and interests and perform all obligations in the vicinity of the Determination Area in performance of their duties; (f) the rights and interests of the "Producers" as defined in the Cooper Basin (Ratification) Act 1975 (SA): (i) as holders of Pipeline Licence No.2 (PL2) granted to the Producers on 26 November 1981 under the Petroleum Act 1940 (SA) and renewed on 3 May 2003 under the Petroleum Act 2000 (SA) and continuing in force by the operation of clause 2 of the Schedule to the Petroleum Act 2000 (SA); (ii) created pursuant to the Stoney Point (Liquids Project) Ratification Act 1981 (SA); (iii) granted to the Producers pursuant to the former PASA (now NGASA) and the Producers' Right of Way Agreement dated 26 November 1981; (iv) for the Producers' employees, agents or contractors to enter the Determination Area to access the Producers' rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties. 12. 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 leases 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. 13. 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. 14. Subject to Paragraph 15, 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; and (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. 15. 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, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA); or (c) a naturally occurring underground accumulation of a regulated substance as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; or (d) a natural reservoir, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; (e) geothermal energy, as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA) the source of which is below a depth of 100 metres from the surface of the earth. For the purposes of this Paragraph 15 and the avoidance of doubt: (i) a geological structure (in whole or in 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) thermal energy contained in a hot or natural spring is not geothermal energy as defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA); (iii) the absence from this order of any reference to a natural reservoir or a naturally occurring accumulation of a regulated substance, as those terms are defined in section 4 of the Petroleum and Geothermal Energy Act 2000 (SA), above a depth 100 metres below the surface of the earth or geothermal energy the source of which is above a depth of 100 metres below the surface of the earth is not, of itself, to be taken as an indication of the existence or otherwise of native title rights or interests in such natural reservoir, naturally occurring accumulation of a regulated substance or geothermal energy. 16. 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. 17. 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: 18. The native title is not to be held in trust. 19. In respect of the Determination Area, Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC is to: (a) be the prescribed body corporate for the purposes of section 57(2) of the Native Title Act; and (b) perform the functions mentioned in section 57(3) of the Native Title Act after becoming the registered native title body corporate in relation to Part 1 of the Determination Area. 20. The Native Title Holders (through Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC), the State or any other Respondent have liberty to apply on 14 days' notice to a single judge of the Court for the following purposes: 20.1 to establish the precise location and boundaries of any public works and adjacent land and waters referred to in Paragraphs 16 and 17 of this Order; 20.2 to establish the effect on native title rights and interests of any public works referred to in Paragraph 17 of this Order; or 20.3 to determine whether any particular area is included in the description in Paragraph 12 or Schedule 2 of this Order. 20.4 to address, if appropriate, any changes to paragraphs 12 and 13 above in light of the decision of the High Court of Australia in State of Western Australia v Brown & Others (No P37 of 2012 HCA) as it relates to pastoral improvements. AND THE COURT MAKES THE FOLLOWING ANCILLARY ORDERS PURSUANT TO SECTION 87A(5) OF THE NATIVE TITLE ACT: 22. The Court notes in relation to the Determination Area as follows: (a) The Dieri People and the Adnyamathanha People have entered into a Memorandum of Understanding between them in the terms of the document comprising the "Annexure A" to Schedule 5, under which both groups agree in particular that: (i) the Adnyamathanha People hold traditional rights and interests in the Dieri Determination Area; (ii) the Dieri People hold traditional rights and interests in the Determination Area; (b) The Agreement provides that the traditional rights and interests referred to in sub-paragraph (a): (i) are not native title rights and interests; and (ii) co-exist with the native title rights and interests. (a) The State and other Respondent parties are not bound by the Memorandum of Understanding referred to in Paragraph 21(a) but acknowledge that the provisions of relevant State and Commonwealth legislation apply according to their terms from time to time in relation to the Determination Area. (b) The consent determination made [or expected to be made] in relation to the Dieri Determination Area is in the terms of the document comprising Schedule 6. SCHEDULE 1 - Description and Map of the Determination Area External boundary description The Determination Area is located wholly within and comprises all the land and waters bounded by the following line: That portion within the external boundary of Allotment 24 in Deposited Plan 42203 as follows; commencing at Longitude 139.771817 East Latitude 29.449001 South; then generally south-easterly in straight lines connecting the following coordinate points Longitude (East) Latitude (South) 139.778008 29.456626 139.786104 29.457580 139.798726 29.466526 139.800913 29.467984 139.803100 29.474550 139.806745 29.481845 139.814763 29.486951 139.822053 29.485491 139.823510 29.480385 139.833677 29.482455 139.888386 29.502268 139.919003 29.518316 139.948160 29.537281 139.972215 29.553329 139.995541 29.567919 Then in a straight line south-easterly to the intersection of the north-western shoreline of Lake Callabonna with Longitude 139.997650 East; then generally south-westerly along the said shoreline of Lake Callabonna to its intersection with the southern bank of Yerila Creek; then generally south-westerly along the said southern bank of Yerila Creek to its intersection with Longitude 139.659150 East; then south to the intersection of the northern boundary of Moolawatana Pastoral Lease - Block 1229, OH(Callabonna) with Longitude 139.659150 East; then westerly along the northern boundary of the said Block 1229, OH (Marree & Callabonna) to its intersection with Wattleowie Creek at Longitude 139.593331 East; then generally northerly along Wattleowie Creek, generally being straight lines connecting the following coordinate points Longitude (East) Latitude (South) 139.595330 29.795900 139.597670 29.793190 139.598190 29.791840 139.599360 29.790150 139.599620 29.789140 139.599630 29.787440 139.599110 29.786200 139.598080 29.785070 139.597570 29.783940 139.597580 29.781910 139.596290 29.780350 139.596160 29.780330 139.596290 29.779420 139.597330 29.778520 139.597850 29.777510 139.597860 29.775030 139.598120 29.773670 139.598780 29.772430 139.599170 29.772100 139.599430 29.771190 139.599430 29.769840 139.598540 29.766570 139.597900 29.765100 139.595710 29.760940 139.594560 29.758770 139.593010 29.757410 139.590820 29.755940 139.589410 29.754440 139.588450 29.752640 139.587090 29.750850 139.586450 29.749500 139.586450 29.748930 139.586060 29.748260 139.586031 29.747900 139.585940 29.746790 139.586210 29.743970 139.585580 29.740580 139.584680 29.738550 139.583520 29.736970 139.582750 29.735380 139.582370 29.734140 139.581210 29.732790 139.579660 29.732100 139.579020 29.731540 139.577210 29.730740 139.576820 29.730740 139.575660 29.730060 139.574760 29.729270 139.573860 29.728250 139.572440 29.727350 139.570900 29.725540 139.568320 29.723430 139.567920 29.722660 139.566260 29.721460 139.565230 29.720900 139.563940 29.719760 139.562780 29.718180 139.561630 29.717050 139.560980 29.716710 139.560080 29.715920 139.559180 29.714380 139.558920 29.713660 139.559000 29.711700 139.558030 29.710160 139.558040 29.709140 139.558750 29.708180 139.557920 29.706210 139.558450 29.704180 139.559870 29.702380 139.560400 29.700570 139.560410 29.697640 139.560800 29.696740 139.561580 29.695840 139.561970 29.694480 139.563270 29.693360 139.563790 29.692230 139.563790 29.691550 139.564820 29.689730 139.565740 29.688630 139.565750 29.687500 139.564850 29.685350 139.564850 29.684790 139.565110 29.684220 139.565000 29.681060 139.564960 29.679350 139.564610 29.676610 139.565080 29.675190 139.564320 29.673370 139.564520 29.671610 139.565660 29.670340 139.566780 29.670410 139.567370 29.669790 139.568630 29.667230 139.568810 29.665050 139.569080 29.662120 139.569210 29.661330 139.570120 29.659870 139.570230 29.657620 139.570650 29.655470 139.571560 29.654230 139.572860 29.653330 139.573380 29.651750 139.574250 29.650430 139.574410 29.649600 139.574430 29.647920 139.574820 29.646900 139.576380 29.644760 139.576900 29.643520 139.577940 29.642170 139.578980 29.640260 139.578870 29.633480 139.579780 29.631680 139.581670 29.630110 139.582270 29.629860 139.582370 29.629210 139.583540 29.627740 139.583730 29.626190 139.583940 29.623910 139.583650 29.622530 139.583830 29.620860 139.585800 29.619010 139.586420 29.618380 139.586680 29.617590 139.586550 29.616240 139.586950 29.615230 139.586820 29.614940 139.586310 29.613760 139.586310 29.611780 139.585670 29.611390 139.585680 29.611200 139.585800 29.609470 139.584900 29.607550 139.585430 29.606530 139.585940 29.603260 139.586350 29.601460 139.586350 29.600220 139.585590 29.598180 139.585600 29.595590 139.585990 29.594910 139.585860 29.593900 139.586380 29.593000 139.586390 29.591640 139.586910 29.590180 139.586910 29.588370 139.587300 29.587580 139.587310 29.587020 139.587700 29.586230 139.588340 29.585670 139.589660 29.585220 139.591670 29.581470 139.591070 29.580260 139.589530 29.578450 139.589150 29.577540 139.589150 29.576640 139.588960 29.575870 the latter coordinate being an intersection of the said Wattleowie Creek with Petermorra Creek; then generally northerly along the said Petermorra Creek, generally being straight lines connecting the following coordinate points Longitude (East) Latitude (South) 139.588230 29.574800 139.587870 29.573930 139.588390 29.572580 139.589040 29.571900 139.589430 29.571000 139.589180 29.569980 139.589570 29.567160 139.589190 29.566030 139.589190 29.565130 139.589710 29.563890 139.591790 29.561410 139.592570 29.559950 139.592700 29.559160 139.591980 29.557900 139.591330 29.557610 139.591160 29.556000 139.591550 29.554760 139.591370 29.552960 139.593110 29.551260 139.593540 29.549110 139.595450 29.547880 139.596490 29.546640 139.596880 29.545740 139.598040 29.544280 139.598820 29.542700 139.598950 29.541910 139.598310 29.541120 139.598440 29.540220 139.598830 29.539430 139.600000 29.538040 139.600260 29.537740 139.600780 29.536390 139.601050 29.531870 139.600890 29.528000 139.600971 29.527625 139.601200 29.526570 139.601200 29.525330 139.601460 29.524990 139.601340 29.522850 139.601730 29.521830 139.602000 29.519240 139.602650 29.516530 139.603040 29.515860 139.603180 29.514950 139.602470 29.513550 139.601000 29.511110 139.601050 29.509400 139.601780 29.507610 139.601360 29.505550 139.601410 29.504120 139.602190 29.502760 139.602750 29.500890 139.603620 29.499610 139.604780 29.498930 139.605300 29.498480 139.605690 29.497020 139.606320 29.496500 139.608010 29.496120 139.608660 29.495560 139.609310 29.492620 139.610020 29.490970 139.611150 29.489990 139.611770 29.489700 139.613450 29.489360 139.614230 29.488240 139.615780 29.487340 139.616810 29.486210 139.616950 29.484630 139.617210 29.484180 139.617210 29.483500 139.615480 29.481980 139.617970 29.479680 139.618700 29.479070 139.620350 29.477060 139.621640 29.475940 139.623050 29.475560 139.624510 29.475650 139.624980 29.475730 139.626270 29.474390 139.628400 29.473740 139.630420 29.473010 139.631320 29.471810 139.632210 29.469670 139.634020 29.468390 139.636630 29.467160 139.638120 29.466570 139.639530 29.464800 139.639990 29.463990 139.641360 29.461580 139.644420 29.459900 139.645780 29.459280 139.647170 29.458650 139.650360 29.457520 139.653070 29.456460 139.655280 29.454360 139.658250 29.452750 139.660360 29.452240 139.660830 29.452220 139.662200 29.452160 139.664970 29.451540 139.666870 29.451580 139.668220 29.452070 139.669680 29.451820 139.671750 29.449670 139.673520 29.447610 139.674440 29.445040 139.675830 29.443770 139.676000 29.443200 139.677290 29.441540 139.679060 29.439630 139.679080 29.439610 139.680660 29.437250 139.682870 29.434980 139.684450 29.433980 139.686420 29.433140 139.688100 29.431580 139.689520 29.431120 139.690840 29.430690 139.694580 29.429570 139.696990 29.428600 139.697380 29.428440 139.704220 29.425730 139.705700 29.424800 139.706900 29.423030 139.707740 29.422210 139.708550 29.421410 139.709240 29.420750 139.709740 29.420090 Then generally south-easterly in straight lines connecting the following coordinate points Longitude (East) Latitude (South) 139.713450 29.419549 139.720196 29.420072 139.723899 29.420390 139.728371 29.426898 139.740272 29.435784 139.748206 29.440069 139.756934 29.442290 139.759949 29.444512 139.771817 29.449001 The latter coordinate being the point of commencement. Reference datum Geographical coordinates have been provided by the NNTT Geospatial services and geographical coordinates are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees. Watercourses and waterbodies (except Lake Blanche) referenced to 1:250,000 Topographic Mapping Series 3 – sourced from Geoscience Australia. Use of Coordinates Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome of the custodians of cadastral and topographical data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. SCHEDULE 2 - Areas that have been excluded from the Determination Area 1. 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): a) Sections 33 and 34 (Category A past acts); b) Section 35 (Category B past acts that are wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests); c) Sections 36B and 36C (Category A intermediate period acts); d) 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); e) 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: a) Section 15(1)(a), (b) (Category A past acts); b) 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); c) Section 22B(a), (b) (Category A intermediate period acts); d) 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); e) 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. 2. For the avoidance of doubt and without limiting the above, Native Title has been extinguished in relation to areas in respect of which any of the following acts have been done by the Crown in right of the State of South Australia on or before 23 December 1996: 2.1. Freehold grants (other than pursuant to the Aboriginal Lands Trust Act 1966 (SA)); 2.2. Perpetual leases (other than leases which are subject to a reservation or condition expressly for the benefit of Aboriginal people); 2.3. Non-perpetual leases (other than pastoral leases or non-exclusive agricultural leases or leases subject to a reservation or condition expressly for the benefit of Aboriginal people), where: 2.4. in the case of grants to the Crown or a statutory authority, made prior to 31 October 1975 (or after 1 January 1994, if an "intermediate period act"); 2.5. in the case of grants other than to the Crown or a statutory authority, made prior to 1 January 1994 (or after 1 January 1994, if a "past act" or "intermediate period act"). 3. Native title rights have been extinguished over all roads which have been delineated in a public map pursuant to section 5(d)(II) of the Crown Lands Act 1929 (SA) or sections 70(3) or (4) of the Crown Land Management Act 2009 (SA) or which have otherwise been validly established pursuant to South Australian Statute or common law. SCHEDULE 3 – The descendants of Adnyamathanha Apical Ancestors The descendants (whether biologically or by adoption) of: a) Mt Serle Bob; b) Polly, wife of Mt Serle Bob; c) Quartpot Tommy; d) Mt Serle Bob's sister, wife of Quartpot Tommy; e) Willy Austin Snr; f) Nicholas Demell; g) Emily McKenzie, wife of Nicholas Demell; h) Sydney Ryan; i) Mary, wife of Sydney Ryan; j) the siblings Angepena Billy or Mary; k) Fanny, wife of Angepena Billy; and l) the siblings Sara Johnson, Matilda Johnson, Fred Johnson, Natalie Johnson, Jessie Johnson or Sydney Jackson. SCHEDULE 4 – Pastoral Leases wholly or partially in the Determination Area Pastoral Lease Name Pastoral Lease Number Crown Lease Number Volume/Folio Murnpeowie (part) PE 2519 CL 1598/37 SCHEDULE 5 – The Memorandum of Understanding between the Adnyamathanha People and the Dieri People "Annexure A": The Memorandum of Understanding between Adnyamathanha native title claim group and Dieri native title claim group dated 29 July 2013 (varying Agreement dated 20 June 2006 – see "Annexure B", as redacted). SCHEDULE 5 – The Memorandum of Understanding between the Adnyamathanha People and the Dieri People "Annexure B": Agreement dated 20 June 2006 between Adnyamathanha native title claim group and Dieri native title claim group, with clause 5 redacted. 4. SCHEDULE 6 - OMITTED SCHEDULE OF PARTIES IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 163 of 2008 DIERI NO 2 NATIVE TITLE CLAIM Applicants: Applicant: IRENE KEMP Applicant: DAVID MUNGERANNIE Applicant: SYLVIA STUART Applicant: RHONDA GEPP-KENNEDY Respondents: Respondent: CAULDRON ENERGY LIMITED Respondent: EPIC ENERGY SOUTH AUSTRALIA PTY LTD Respondent: TEALE & ASSOCIATES PTY LTD Respondent: ALLIANCE PETROLEUM AUSTRALIA PTY LTD Respondent: BRIDGE OIL DEVELOPMENTS PTY LTD Respondent: SANTOS LIMITED Respondent: DELHI PETROLEUM PTY LTD Respondent: ORIGIN ENERGY RESOURCES LIMITED Respondent: SANTOS (BOL) PTY LTD Respondent: SANTOS PETROLEUM PTY LTD Respondent: REEF OIL PTY LTD Respondent: BASIN OIL PTY LTD Respondent: VAMGAS PTY LTD Respondent: SANTOS (NARNL COOPER) PTY LTD IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 163 of 2008 DIERI NO 2 NATIVE TITLE CLAIM BETWEEN: EDWARD LANDER AND OTHERS NAMED IN THE SCHEDULE OF PARTIES Applicant AND: STATE OF SOUTH AUSTRALIA AND OTHERS NAMED IN THE SCHEDULE OF PARTIES Respondent JUDGE: WHITE J DATE: 26 february 2014 PLACE: port augusta REASONS FOR JUDGMENT 1 The Dieri People and the Adnyamathanha People have made overlapping claims for native title in respect of an area of land located to the north and north-west of the northern end of the Flinders Ranges. 2 The Dieri, the Adnyamathanha, the State of South Australia, and the other parties to the respective proceedings have reached agreement about these overlapping claims. The claim of the Dieri is to be recognised in respect of the western portion of the claimed area and the claim of the Adnyamathanha recognised with respect to the eastern portion. Each of the Dieri and the Adnyamathanha have agreed between themselves to recognise the traditional rights of the other in the area over which they will not hold native title. 3 Yesterday, by consent, the Court made two determinations of native title in favour of the Adnyamathanha. The second of these, referred to by the parties as Adnyamathanha No 1 – Stage Three, gave effect to the parties' agreement that the claim of the Adnyamathanha should be recognised in respect of the eastern portion of the overlap area. That determination was made pursuant to s 87A of the Native Title Act 1993 (Cth) (NTA) on the application lodged by the Adnyamathanha People in this Court on 30 September 1998 (the Adnyamathanha No 1 Claim). 4 The application by the Dieri (known as the Dieri No 2 Native Title Claim) was lodged in this Court in September 2008. The Dieri No 2 Claim overlaps the northern part of the Adnyamathanha No 1 Claim. 5 The area which is the subject of the present proposed determination comprises a relatively small portion of the Adnyamathanha No 1 Claim, but (together with the area the subject of Adnyamathanha No 1 – Stage Three determination) the whole of the Dieri No 2 Claim. The making of the proposed determination will therefore have the effect of determining finally the whole of the Dieri No 2 Claim. 6 The parties used the short-hand labels "B1" for the area in respect of which a determination is to be made in favour of the Dieri, and the short-hand label "B2" for the area the subject of Adnyamathanha No 1 – Stage Three. 7 Both areas have an irregular shape. Area B1 is bounded on its north-west side by a line commencing at a point on the western boundary of the Wilpoorinna Pastoral Lease and running generally in a north-east direction; on its north-eastern side by the western shoreline of Lake Blanche (and by an imaginary prolongation of that shoreline); on its eastern side by the Petermorra and Wattleowie Creeks; and on its southern boundary by the southern boundary of the Murnpeowie Pastoral Lease. This is necessarily an imprecise description of the area. It is described with specificity in Schedule 1 of the proposed determination. 8 Area B2, which is smaller than Area B1, abuts Area B1 on its western boundary, so that it is generally bordered by the Petermorra and Wattleowie Creeks on its western side. It is not necessary in these reasons to describe Area B2 further. 9 This Court has previously made a determination by consent in favour of the Dieri. On 1 May 2012, Mansfield J made a determination under s 87 of the NTA in the Dieri No 1 Claim in respect of a large area in the north-eastern region of South Australia (Lander v State of South Australia [2012] FCA 427). The southern boundary of the Dieri No 1 Claim adjoins the north-western boundary of Area B1. Section 87A 10 The parties seek the determination under s 87A of the NTA. Section 87A permits the Court to make a determination by consent (and without a hearing) if it is satisfied that: (a) there is agreement by all parties to the proceedings at the time the agreement is made on a proposed determination of native title in respect of a claim area (s 87A(1)(b)-(c)); (b) the period specified in the Registrar's notice under s 66 has ended (s 87A(1)(b)); (c) the terms of the proposed determination are in writing and have been signed by, or on behalf of, each of the parties (s 87A(1)(d)) and a copy has been filed with the Court (s 87A(2)); (d) the Registrar has given notice to the other parties to the proceedings of the filing of the proposed determination (s 87A(3)); (e) an order in, or consistent with, the terms of the proposed determination would be within its power (s 87A(4)(a)); and (f) it is appropriate to make the determination (s 87A(4)(b)). Approach to the application of s 87A 11 One of the policies of the NTA is to encourage parties to reach agreements with respect to claims of native title, without the necessity for a formal court hearing. Sections 87 and 87A reflect that policy by permitting the Court to give effect to the parties' agreement without itself hearing and determining the merits of an application. 12 On the other hand, a determination of native title binds not only the parties to the proceedings in which it is made, but everyone else in the community. Because of this, the Court must be satisfied that the determination it is asked to make is supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. 13 The approach of the Court in these circumstances has been described in a number of cases. In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, North J said: 35 In the present case the Court has heard some evidence, but not a comprehensive case sufficient to establish the facts which would support a determination. Section 87(1) obviously contemplates that the Court can make orders in such circumstances because it applies when there is no hearing or no full hearing of the case. 36 The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. 37 In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: … Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: … There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. 38 The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. … (Citations omitted) As can be seen, North J emphasised the role of the relevant State in investigating and assessing claims for native title, and the weight which the Court is entitled to give to the State's evaluation of that evidence and its consent to a determination. 14 In Nelson v Northern Territory of Australia [2010] FCA 1343 at [12]-[13]; (2010) 190 FCR 344 at 348, Reeves J referred to the significance of the State's role in agreements leading to proposed consent determinations, and referred to further passages in the reasons of North J in Lovett. Reeves J said: It is appropriate to make some comments about the difficult balance a State party needs to strike between its role in protecting the community's interests, including the stringency of the processes it follows in assessing the underlying evidence going to the existence of native title, and its role in the native title system as a whole, to ensure that it, like the Court and all other parties, takes a flexible approach that is aimed at facilitating negotiation and achieving agreement. In Lovett North J commented: … There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. I respectfully agree with North J in these observations. … 15 Madgwick J emphasised the responsibility of a State in assessing claims for native title in Smith v Western Australia [2000] FCA 1249 at [38]; (2000) 104 FCR 494 at 501-2: … State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as carefully as the community would expect in relation to claims by non-Aborigines to significant rights over such land. The State is faced with a good many such claims. A deal of proper caution is to be expected. … 16 Finally, it is appropriate to refer to the reasons of Keane CJ in King v State of South Australia [2011] FCA 1386 at [19]; (2011) 285 ALR 454 at 458: More recently, the Court has been prepared to rely upon the processes of the relevant State or Territory about the requirements of s 223 being met to be satisfied that the making of the agreed orders is appropriate. That is because each State and Territory has developed a protocol or procedure by which it determines whether native title (as defined in s 223) has been established. It acts in the public interest and as the public guardian in doing so. It has access to anthropological, and where appropriate, archaeological, historical and linguistic expertise. It has a legal team to manage and supervise the testing as to the existence of native title in the claimant group. Although the Court must, of course, preserve to itself the question whether it is satisfied that the proposed orders are appropriate in the circumstances of each particular application, generally the Court reaches the required satisfaction by reliance upon those processes. They are commonly explained in the joint submissions of the parties in support of the orders agreed. … 17 The approach set out in these passages has been applied in a number of cases in this Court and I consider that it can be applied in the present case. The State of South Australia has developed a rigorous process for assessing the evidence in native title claims against the requirements of the NTA. This process is outlined in the State's policy document entitled "Consent Determinations in South Australia: A Guide to Preparing Native Title Reports". The State assessed the respective claims of the Dieri and the Adnyamathanha in respect of the overlap area using the process set out in its policy document. The evidence and materials reviewed by the State 18 The joint written submissions of the State and of the applicants (including the Adnyamathanha) indicate that the State has had regard to an extensive range of material. The principal evidence provided by the Dieri consisted of five documents co-authored by two anthropologists, Drs Fergie and Lucas. Dr Fergie holds a senior lectureship, and Dr Lucas a lectureship, in anthropology at the University of Adelaide. Each is a consultant anthropologist with considerable professional and academic experience, both generally and with regard to native title. In addition, the State had regard to preservation evidence taken on country by this Court from Mrs Irene Warren and Mr Bob Kennedy (both claimants), and Mr George Bell (a pastoralist). Finally, I note that the State was supplied with various statements and affidavits from the claimants. 19 The Adnyamathanha provided the State with four documents authored by Mr Ellis, an anthropologist. He is a consultant with over 40 years' experience in Aboriginal traditions and heritage generally, and it is accepted that he has a specialised knowledge of the Adnyamathanha. In addition, the Adnyamathanha provided the State with numerous signed witness statements deposing to matters bearing upon the continued existence of native title in the overlap area. 20 The State assessed this material with the assistance of its then in-house anthropologist, Mr McCaul, and an independent expert, Dr Martin. Dr Martin holds a PhD in anthropology and has been involved in a large number of native title matters. A conference of the anthropological experts, chaired by Professor Peter Sutton, was held on 2 and 3 May 2010. The experts reached a generally agreed conclusion which, amongst other things, led to further material being supplied. 21 The State then sought an opinion from independent counsel, Ms Gabrielle Brown, who has experience in native title matters. Ms Brown provided an opinion to the effect that the requirements of the State's policy guidelines had been met and that no further evidence was required. 22 In October 2011, the Crown Solicitor's Office circulated a position paper to all respondent parties. That paper explained the basis for the conclusion of the Crown Solicitor's Office and proceeded on the basis that the claimant groups were then content to have a joint determination of native title. 23 However, subsequently it became apparent that there was not unanimity of views about such a joint determination. This Court then convened a mediation. Agreement was reached at that mediation on 29 July 2013 that the overlap area would be divided into two discrete areas: Area B1 for which the Dieri would be the native title holders and Area B2 for which the Adnyamathanha would be the native title holders, with each recognising the traditional rights of the other group. 24 Mr Michael Evans QC, the former Crown Advocate, considered the proposal emerging from the mediation. He advised that the two proposed determinations are appropriate. 25 The State then circulated a revised position paper to the respondent parties in November 2013. All affected parties signed the proposed determinations in favour of the Dieri and the Adnyamathanha to indicate their agreement or have removed themselves as a party to the proceedings. Consideration 26 I am satisfied that the "procedural" requirements of s 87A have been satisfied. Each of the current parties in the Dieri No 2 proceeding is a party to the agreement; the terms of the proposed determination have been reduced to writing and have been signed by or on behalf of each party; and the period specified in the respective notices under s 66 has expired. The proposed determination is to be made on an application which is valid under the NTA and within the Court's jurisdiction under s 61 of the NTA. 27 Section 94A of the NTA requires that an order of this Court determining a native title claim must set out details of the matters mentioned in s 225. Section 225 provides: 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. 28 As can be seen, s 225(b) refers to "native title rights and interests". That expression is defined in s 223(1) of the NTA as follows: (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. 29 The requirements of s 223(1) were considered by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422. The relevant principles were also reviewed by Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404. Those principles require that there be a recognisable group or society which presently recognises and observes traditional laws and customs in the area of the proposed determination. 30 The following matters are pertinent to the identification of that group or society: (a) That they are a society united in and by their acknowledgement and observance of a body of accepted laws and customs; (b) That the present day body of accepted laws and customs of the society is in essence the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; and (c) That the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs. 31 The claimants must show that they still possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land (Lander v State of South Australia [2012] FCA 427 at [34]). The relevant society 32 The Dieri No 2 claim group is the same as the group granted native title in the Dieri No 1 Claim. The group comprises the descendants (whether biologically or by adoption) of named persons who identify as Dieri and who are recognised by other native title holders under the relevant Dieri traditional laws and customs as having maintained an affiliation with, and continuing to hold native title rights and interests in, Area B1. 33 In Lander v State of South Australia [2012] FCA 427, Mansfield J concluded that the material justified a conclusion that the Dieri are a society satisfying the requirements of the NTA. Mansfield J referred (at [36]), amongst other things, to material indicating that the contemporary Dieri People observe laws and customs which have evolved from those of the original Dieri relating to: • Principles of recruitment to the group; • Identifying with the language; • Principles of marriage; • Modes of respect of systems of authority; • Responsibility for nurturing, teaching and reproducing Dieri ways. 34 Dr Martin considers that the Dieri constitute a society in the relevant sense and counsel for the State has reached the same view. This is so even though the principles of its membership are changing in the light of changed circumstances, such as the development of communities and towns in which claimants live away from the claim area. The relationship between the claim group's society and the society in the determination area at sovereignty 35 The State has accepted the conclusions of Drs Fergie, Lucas and Martin that the members of the Dieri claim group have descended from those in occupation of the claim area at sovereignty. The material supporting this conclusion comprises evidence provided by the claimants, as well as extensive research carried out by Drs Lucas and Fergie. In Lander v State of South Australia, Mansfield J summarised the evidence on this topic as follows: 40 The evidence suggests that there are a substantial number of members of the Dieri People whose ancestors going back to first contact and close to the time of sovereignty were demonstrably associated with the Determination area at the time. Further, the evidence from historic ethnography suggests that the other mechanisms by which claimants obtain rights in country, i.e. birth, long-term residence and religious knowledge, are likely to have also been operating at the time of sovereignty. Across the generations this has allowed those whose ancestors were primarily associated with country elsewhere within the domain of the "Lakes" group, to establish connections to the claim area. It is a process that continues today. A similar conclusion is warranted in the present case. Has there been substantially uninterrupted observance of traditional laws and customs since sovereignty? 36 The State considers that there is ample evidence that the Dieri People continue to exercise and observe traditional laws and customs in respect of the Area B1. That exercise and observance includes: • generations of people living in Marree, near to the Area B1, who continue to transmit knowledge of the country and to maintain contact with the country; • transmission of knowledge by a number of older people to the claimants; • fragments of original religious and mythology systems still informing aspects of everyday life, for example, links to the Bronze Wing Pigeon, Snake, White Cockatoo and Black Cockatoo; • maintenance of male initiatory practices (although these are not necessarily specific to the Dieri); • the observance of the need to treat country with respect; • the acknowledgement of the right to take game or bush tucker in Dieri country but not beyond; • hunting and camping. 37 The indications that the contemporary society operates by way of specific laws and customs, giving rise to rights and obligations to persons and to land include: • current practice of the kinship system; • observation and practice of rituals such as funerals; • being on and knowing the country; • learning and teaching others about the country; • attachment to and memories of "old" people's places; • expression of ownership and practice of maintenance, care and protection of the country through work area clearances; • political organisation and structure continuing in a traditional way; • speaking of the Dieri language; • birth and death rights. 38 Having regard to these matters, the State has satisfied itself that the Dieri People practice traditional laws and customs that have a continued existence and vitality, and have their origins in those likely to have been held at sovereignty. Connection to the determination area by traditional laws and customs 39 Claimants for native title must follow traditional laws and customs which are connected to the land and which give rise to rights and responsibilities in relation to that land. Mansfield J observed in Lander v State of South Australia [2012] FCA 427 at [49]: [I]t is not "connection" to the land in the abstract that must be considered, but the content of the traditional laws and customs, the nature and extent of the connection with the land required under those laws and customs, and the relationship between the laws and customs and rights or interests in land which is important. 40 The evidence considered by the State indicates that two of the principles of Dieri group membership operative until the early twentieth century were birth in Dieri country and long-term residence in that country. Those principles remain important in the senior generations of the Dieri, but are adapting in the twentieth century given that many claimants live in communities and towns away from Dieri country. The anthropologists have found strong evidence of transmission of the traditional law and customs specifically concerning Dieri connection to land, and of spiritual dimensions in that connection. Dr Martin has accepted that there is evidence of the normative character of Dieri law and custom, examples of which in relation to connection to the country include: • treating the country with respect; • being introduced to the country by senior people; • Elders needing to show the people around; • rights to take tucker; • kangaroo hunting; • children being "shown" the country. 41 Evidence of the claimants exercising rights and interests in the claim area include: • observing the importance of rock holes; • death practices; • land-based ceremonies such as funerals; • teaching of physical and spiritual attributes of the land; • maintaining sites through work area clearances; • ritual roles on the land. In addition, the evidence has confirmed the presence of numerous sites of relevance to the Dieri within the claim area. 42 The conclusions of the State in these respects are similar to those reached by Mansfield J in Lander v State of South Australia [2012] FCA 427 at [49]-[52]. The relationship between the traditional laws and customs with the relevant society and the rights and interests claimed by the applicant 43 The rights and interests to be recognised are set out in paragraph 7 of the proposed determination. I note that those rights are consistent with rights recognised by this Court elsewhere and consistent with the traditional rights and interests which would have been observed previously. 44 I also note that the State has satisfied itself that the native title rights and interests in Area B1 arise from the Dieri's traditional laws and customs, and that they have evolved from the native title rights and interests as they were likely to have been at sovereignty. Recognisable by laws of Australia 45 I am satisfied that there is no right or interest to be recognised by the proposed determination which would not be recognised by the law of Australia. Section 225 46 Earlier in these reasons I set out in full s 225 of the NTA. I am satisfied that the proposed determination satisfies the elements of s 225 as required by s 94A of the NTA. Paragraphs 2, 4 and Schedule 1 in the proposed determination set out with appropriate particularity the area in which native title exists. 47 Paragraph 6 and Schedule 3 of the proposed determination define the group of native title holders and the criteria by which group membership is determined. The State has satisfied itself that the description in the Schedule reflects the evidence about relevant ancestors through whom individuals hold rights and interests in land. 48 Paragraph 7 of the proposed determination sets out the nature and extent of the native title rights and interests in the determination area. 49 Paragraph 11 of the proposed determination sets out in an appropriate way the nature and extent of other interests in the determination area. I note in this regard that there has been ample opportunity for other interest-holders to identify themselves and join as parties to the claim. 50 Paragraphs 12, 15, 16 and Schedule 2 set out areas, resources and improvements in respect of which native title does not exist. 51 Paragraph 14 of the proposed determination describes, as required by s 225(d), the relationship between the native title rights referred to in paragraph 7 and the other rights listed in paragraph 11. 52 In relation to s 225(e), I note that the majority of the Areas B1 and B2 are covered by parts of two non-exclusive pastoral leases. There are no areas where the native title rights and interests confer possession, occupation, use and enjoyment of land and waters on the native title holders to the exclusion of all others. 53 By ss 55 and 56 of the NTA, the Court must determine whether the native title is to be held in trust and, if so, by whom. Paragraph 18 of the proposed orders provides expressly that the native title is not to be held in trust. General 54 As indicated at the commencement of these reasons, it is significant that the parties have reached agreement on the terms of the proposed determinations and join in asking the Court to make the determinations. Those parties include the two claimant groups, the State of South Australia, affected pastoralists, South Australian Native Title Services Ltd, Telstra Corporation Ltd, Epic Energy South Australia Pty Ltd, Cauldron Energy Ltd and Teale and Associates Pty Ltd. 55 The State has searched the cadastre and mining tenements in the proposed determination area and has not identified any other party as holding a relevant interest. No party has identified any additional interest and no party has objected to the making of the consent determination. 56 It is apparent that nearly all parties have had independent legal advice. There is no reason to suppose that a lack of representation has disadvantaged any unrepresented respondent. 57 The parties are agreed that the prospective registered native title body corporate, Dieri Aboriginal Corporation RNTBC, has liberty to apply to seek a variation of the determination of native title in this matter, as it relates to pastoral improvements, in the event that the ruling of this Court in De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 with respect to pastoral improvements is overturned, set aside or otherwise found to be an incorrect legal ruling by the High Court in the context of an appeal to the High Court from the decision of this Court in Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154; (2012) 208 FCR 505. Conclusion 58 Having regard to the above matters, I am satisfied that the proposed determination is appropriate and should be made. I will make orders in the terms proposed by the parties. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate: Dated: 26 February 2014