Federal Court of Australia Sansbury v State of South Australia (Narungga Nation Native Title Claim) [2023] FCA 196 File number: SAD 88 of 2022 Judgment of: CHARLESWORTH J Date of judgment: 14 March 2023 Catchwords: NATIVE TITLE – Determination as to whether or not native title exists in an area – determination by consent pursuant to s 87 of the Native Title Act 1993 (Cth) Legislation: Australian Maritime Safety Act 1990 (Cth) s 6 Australian Telecommunications Corporation Act 1989 (Cth) Native Title Act 1993 (Cth) ss 3, 13, 24EBA, 47A, 47B, 47C, 57, 66, 87, 94A, 223, 225, 238 Navigation Act 2012 (Cth) s 190 Post and Telegraph Act 1901 (Cth) Telecommunications Act 1975 (Cth) Telecommunications Act 1991 (Cth) Telecommunications Act 1997 (Cth) Crown Land Management Act 2009 (SA) Crown Lands Act 1929 (SA) Electricity Act 1996 (SA) Fisheries Management Act 2007 (SA) Harbors and Navigation Act 1993 (SA) ss 4, 15 Landscape South Australia Act 2019 (SA) Local Government Act 1934 (SA) Local Government Act 1999 (SA) Mining Act 1971 (SA) National Parks and Wildlife Act 1972 (SA) Native Title (South Australia) Act 1994 (SA) s 32B Native Vegetation Act 1991 (SA) Petroleum and Geothermal Energy Act 2000 (SA) Cases Cited: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Mabo v Queensland (No 2) (1992) 175 CLR 1 Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 Nelson v Northern Territory (2010) 190 FCR 344 Division: General Division Registry: South Australia National Practice Area: Native Title Number of paragraphs: 24 Date of last submission: 6 February 2023 Date of hearing: Determined on the papers Counsel for the Applicant: Mr Patrick McCabe with Mr Tim Graham Solicitor for the Applicant: South Australian Native Title Services Counsel for the First Respondent: The Hon Kyam Maher MLC with Mr Warwick Ambrose Solicitor for the First Respondent: Crown Solicitors Office Counsel for the Second Respondent: Mr Maximilian Heffernan Solicitor for the Second Respondent: Australian Government Solicitor Counsel for the Third, Fourth, Eleventh, Twelfth and Fifteenth Respondents: Ms Jane Welsh Solicitor for the Third, Fourth, Eleventh, Twelfth and Fifteenth Respondents: Finlaysons Counsel for the Fifth, Sixth, Seventh and Eighth Respondents: Ms Ceilia Divakaran Solicitor for the Fifth, Sixth, Seventh and Eighth Respondents: Mellor Olsson Counsel for the Ninth Respondent: The Ninth Respondent did not appear Counsel for the Tenth Respondent: The Tenth Respondent did not appear Counsel for the Thirteenth Respondent: Mr Ewan Vickery Solicitor for the Thirteenth Respondent: Minter Ellison Counsel for the Fourteenth Respondent: The Fourteenth Respondent did not appear Counsel for the Sixteenth Respondent: The Sixteenth Respondent did not appear ORDERS SAD 88 of 2022 NARUNGGA NATION NATIVE TITLE CLAIM BETWEEN: TAUTO SANSBURY, JOHN BUCKSKIN, KAY LAWRENCE and NAOMI HICKS Applicant AND: STATE OF SOUTH AUSTRALIA First Respondent COMMONWEALTH OF AUSTRALIA Second Respondent COPPER COAST COUNCIL (and others named in the Schedule of Parties) Third Respondent order made by: CHARLESWORTH J DATE OF ORDER: 14 MARCH 2023 THE COURT NOTES THAT: A. Native Title Determination Application No SAD 88 of 2022 was first lodged with the Federal Court of Australia on 25 March 2013. B. The Applicant wishes to record its acknowledgement of Tauto Sansbury (deceased) as a former Applicant to this Determination Application and his contributions towards achieving the Orders set out hereunder. C. The Applicant and the First Respondent (State) have negotiated with a view to agreeing to settle the Application without the need to proceed with the trial. Both parties have negotiated in good faith and with full advice from their legal representatives and experts, and have reached a compromise which is set out in an Indigenous Land Use Agreement (ILUA) called the Narungga Nation Determination ILUA and in this determination of native title. This determination will take effect upon the registration of the ILUA as an Area Agreement under Subdiv C of Div 3 of Pt 2 of the Native Title Act 1993 (Cth) (NTA). D. The parties, including the Applicant, the State, the Commonwealth and the other respondents have now reached an agreement as to the terms of a determination of native title to be made in relation to land and waters covered by the Application and as to the terms of proposed orders. E. The Applicant and the State have carried out an analysis of the historical tenure records within the claim area. The tenure position reflected in this Determination represents a compromise that has been agreed between the parties for the purposes of settlement. F. The parties agree that the ILUA: (i) contains the agreement of the Applicant and the State that the vesting of Adjacent land and Subjacent land in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA) is a valid act to which the non-extinguishment principle applies. The effect of registration of the ILUA will be that, pursuant to s 24EBA of the NTA and s 32B of the Native Title (South Australia) Act 1994 (SA), the validity of the vesting will be confirmed, and any extinguishing effect of the vesting will be changed so that the non-extinguishment principle will apply to the vesting of Adjacent land and Subjacent land which is within the Determination Area; and (ii) addresses the native title status of parcels which, in the course of negotiating the tenure schedules to this determination, were agreed by the Applicant and the State to be included in the ILUA. G. The parties acknowledge that, when this determination takes effect, the members of the native title claim group described below, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the Native Title Holders for the Native Title Land. H. Having regard to the need to balance the limited availability of public resources with the competing need to resolve applications for a determination of native title in an efficient, cost effective and timely manner, negotiations with respect to a potential agreement to be made pursuant to s 47C(1)(b) of the NTA will be addressed subsequent to this determination. Pursuant to s 13(5)(c) of the NTA the Applicant and the State will seek to revise this determination to reflect any such agreement. Being satisfied that a determination in the terms sought by the parties would be within the power of the Court and it appearing to the Court appropriate to do so: THE COURT ORDERS THAT: 1. There be a Determination of native title in respect of the Determination Area in the terms set out at paragraphs 6 to 26 below. 2. The Determination take effect upon the ILUA being registered on the Register of Indigenous Land Use Agreements. 3. In the event that the ILUA is not registered on the Register of Indigenous Land Use Agreements within eight (8) months from the date of this order, or such later time as the Court may order, the matter is to be listed for further directions. 4. The Applicant (prior to the Determination taking effect) or the Prescribed Body Corporate (after the Determination takes effect), the State and any other respondent have liberty to apply on 14 days' notice to a single judge of the Court: (a) if that party considers that the ILUA will not be registered on the Register of Indigenous Land Use Agreements within eight (8) months of the date of this order; (b) to establish the precise location and boundaries of any public works and adjacent land and waters referred to in items 2 or 3 of Schedule 5; (c) to determine the effect on native title rights and interests of any public works as referred to in item 3 of Schedule 5. 5. Each party to the proceeding is to bear its own costs. THE COURT DETERMINES THAT: Interpretation 6. In the Determination, including its Schedules: (a) unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Pt 15 of the NTA; (b) "Adjacent land" and "Subjacent land" have the meaning given to them in s 4(1) of the Harbors and Navigation Act 1993 (SA); (c) "Native Title Land" means the land and waters referred to in paragraph 9 of these orders; and (d) in the event of an inconsistency between a written description of an area in a Schedule and the depiction of that area on the maps in Schedule 2, the written description shall prevail. Determination Area 7. Schedule 1 describes the external boundary of the Determination Area. 8. To the extent that the Application covers land or waters outside the external boundary of the Determination Area, it is dismissed. Areas within Determination Area where native title exists (Native Title Land) 9. Subject to Schedule 5, native title exists in the land and waters described in Schedules 3, 4 and 7. 10. Section 47A and s 47B of the NTA apply to those parcels or parts of parcels described in Parts A and B respectively of Schedule 4. Save for public works described in items 2, 3 and 4 of Schedule 5, all extinguishment of native title rights and interests over those areas prior to 25 March 2013 is disregarded and native title exists in those parcels or parts of parcels. 11. For the avoidance of doubt, native title is recognised in the Adjacent land and the Subjacent land that lie within the Determination Area (excluding those areas identified in Schedule 5) which are identified on the maps at Schedule 2 and described in Schedule 7. Areas within Determination Area where native title does not exist 12. Pursuant to s 225 of the NTA, native title does not exist in relation to all of the land and waters comprised in those areas described in Schedule 5. 13. Native title is extinguished in those areas described in Schedule 6, being areas in respect of which native title is surrendered pursuant to the ILUA. 14. But for extinguishing acts, the Native Title Holders would have held native title in the entire Determination Area. Native Title Holders 15. The Native Title Holders are those living Aboriginal people who identify as Narungga and are recognised by the other Native Title Holders under Narungga traditional laws and customs as having rights and interests in the Determination Area who: (a) are the descendants of the following Narungga apical ancestors: (i) a "full-blooded Narungga woman of the Wallaroo area" married to Charlie Angie (of China); (ii) King Tommy and "a full-blooded woman named Mary" (Queen Mary), married to King Tommy; (iii) Ben Simms (of Wallaroo); (iv) Maria (Aboriginal Narungga of Wallaroo), married to white jailer, surname "Hughes" at Wallaroo; (v) S(t)ansbury "Narungga woman of Moonta"; (vi) Maryanne mother of Lena, John and Louisa; or (b) are the descendants of the following people incorporated into Narungga society: (i) Claude Smith; or (ii) Edward Chester Senior (born circa 1878). (collectively, Native Title Holders). Rights and Interests 16. Subject to paragraphs 17 to 21, the nature and extent of the native title rights and interests in the Native Title Land are the non-exclusive rights to use and enjoy those lands and waters, being: (a) the right of access to the land and waters; (b) the right to live on, use and enjoy the land and waters including for ceremonial purposes; (c) the right to take, use, enjoy, share and exchange the resources of the land and waters including by fishing, hunting and gathering; but excluding those resources referred to in item 1 of Schedule 5; (d) the right, subject to the Landscape South Australia Act 2019 (SA) or any successor act, to use the natural water resources; (e) the right to conduct funerals and burials on the land and waters. (f) the right to visit, maintain and protect places of importance under traditional laws, customs and practices on the land and waters; (g) the right to teach traditional laws and customs to each other on the land and waters; and (h) the right to be accompanied on the land and waters by those people who, though not Narungga persons, are (i) spouses of Narungga persons; or (ii) people required by the traditional laws and customs for the performance of ceremonies or cultural activities. General Limitations 17. The native title rights and interests set out at paragraph 16 are for personal, domestic and communal needs. 18. Subject to paragraph 19, the native title rights and interests described in paragraph 16 do not confer possession, occupation, use and enjoyment of the land and waters on the Native Title Holders to the exclusion of others. 19. The nature and extent of native title rights and interests in relation to Part A of Schedule 4 (being areas where extinguishment of native title rights and interests over the areas therein prior to 25 March 2013 is to be disregarded in accordance with s 47A of the NTA) are, an entitlement to possession, occupation, use and enjoyment of the land and waters of that part to the exclusion of all others. 20. The native title right to fish set out in paragraph 16(c) does not include the right to fish for marine mammals and is only exercisable in accordance with traditional laws and customs governing the conservation and sustainable fishing of fish stocks. 21. The native title rights and interests set out at paragraph 16 and 20 are subject to and exercisable in accordance with: (a) the traditional laws and customs of the Native Title Holders; and (b) the valid laws of the State and Commonwealth, including the common law. Other Interests & Relationship with Native Title 22. The nature and extent of other interests in the Native Title Land are: (a) the interests of the Crown in right of the State of South Australia; (b) the interests of the Commonwealth of Australia, if any; (c) in relation to reserves as defined in the National Parks and Wildlife Act 1972 (SA): (i) the rights and interests of the Crown in right of the State of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA); and (ii) the rights and interests of the public to use and enjoy those reserves consistent with the National Parks and Wildlife Act 1972 (SA); (d) 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 including, but not limited to, rights and interests granted or recognised pursuant to the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Native Vegetation Act 1991 (SA), Fisheries Management Act 2007 (SA), Landscape South Australia Act 2019 (SA), Mining Act 1971 (SA), and the Petroleum and Geothermal Energy Act 2000 (SA), all as amended from time to time; (e) rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth; (f) the interests of the relevant interest holders in the parcels listed in Part A of Schedule 4 (s 47A land); (g) 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 where such access would be permitted to private land; (h) the rights and interests of the Australian Maritime Safety Authority (the Authority) as the owner, manager, or operator of aids to navigation pursuant to s 190 of the Navigation Act 2012 (Cth) and in performing the functions of the Authority under s 6(1) of the Australian Maritime Safety Act 1990 (Cth) including to be a national marine safety regulator, to combat pollution in the marine environment and to provide a search and rescue service; (i) the Automatic Weather System (AWS) known as Waberto Point AWS, located within the external boundaries of Allotment 50, Deposited Plan 35082. (j) the rights and interests of all parties to the ILUA; (k) the rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd (ACN 648 133 073), any related bodies corporate and successors in title: (i) as the owner or operator of telecommunications facilities within the Native Title Land; (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 rights: A. to inspect land; B. to install, occupy and operate telecommunications facilities; and C. to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (iii) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Native Title Land in performance of their duties; and (iv) under any lease, licence, permit, access agreement or easement relating to its telecommunications facilities within the Native Title Land; (l) the rights, interests and entitlements of SA Power Networks (a partnership of Spark Infrastructure SA (No.1) Pty Ltd, Spark Infrastructure SA (No.2) Pty Ltd, Spark Infrastructure SA (No.3) Pty Ltd, CKI Utilities Development Limited and PAI Utilities Development Limited) and its related and successor entities, including its rights, interests and entitlements: (i) to exercise its entitlements and discharge its obligations as the owner and/or operator of electricity infrastructure (as defined in the Electricity Act 1996 (SA)) and telecommunications facilities and infrastructure within the Native Title Land including but not limited to the existing infrastructure identified in Schedule 8 (Existing Infrastructure); (ii) to exercise its entitlements and discharge its obligations as the holder of a licence under the Electricity Act 1996 (SA) and/or as an electricity entity under the Electricity Act 1996 (SA); (iii) to exercise its entitlements and discharge its obligations as the holder of a carrier licence under the Telecommunications Act 1997 (Cth); (iv) to install new electricity and telecommunications infrastructure on the Native Title Land (New Infrastructure) and modify, maintain and repair Existing Infrastructure; (v) under easements, leases or licences (whether registered, unregistered, statutory or otherwise) relating to Existing Infrastructure or New Infrastructure on the Native Title Land including but not limited to the easements identified in Schedule 8 (Easements); (vi) to provide its employees, agents or contractors with access to Existing Infrastructure, New Infrastructure and the Easements on the Native Title Land; and (vii) to the extent permitted by law, to restrain any person from performing any act, or compel any person to perform any act, for the purposes of ensuring that SA Power Networks complies with its obligations under any law, including, but not limited to, excluding any person from entering an area containing Existing Infrastructure or New Infrastructure for the purposes of maintaining the safety of any person and the security and protection of such infrastructure; (m) the rights and interests of each of Yorke Peninsula Council, Wakefield Regional Council, Copper Coast Council and Barunga West Council in their relevant local government areas in the Native Title Land: (i) under the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA); (ii) as an entity exercising statutory powers in respect of land and waters within the Native Title Land; and (iii) in relation to dedicated land placed under its care, control and management pursuant to the Crown Lands Act 1929 (SA) or the Crown Land Management Act 2009 (SA). 23. The relationship between the native title rights and interests in the Native Title Land that are described in paragraph 16 and 20 and the other rights and interests that are described in paragraph 22 (the Other Interests) is that: (a) to the extent that any of the Other Interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests; (b) the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the Other Interests, and the Other Interests, and the doing of any activity required or permitted to be done by or under the Other Interests, prevail over the native title rights and interests and any exercise of the native title rights and interests, but, subject to any application of the NTA or the Native Title (South Australia) Act 1994 (SA), do not extinguish them. 24. For the avoidance of doubt, the relationship between the Aboriginal-held interests listed in Part A of Schedule 4 and the native title rights and interests in the Determination Area that are described in paragraph 16 is governed by the non-extinguishment principle as defined in s 238 of the NTA. AND THE COURT MAKES THE FOLLOWING FURTHER ORDERS: 25. The native title is not to be held on trust. 26. The Narungga Nation Aboriginal Corporation (ICN 3863) is to: (a) be the prescribed body corporate for the purposes of s 57(2) of the NTA; and (b) perform the functions mentioned in s 57(3) of the NTA after becoming the registered native title body corporate in relation to the Native Title Land. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHARLESWORTH J 1 The authorised applicant seeks a determination of native title on behalf of the Narungga People in relation to an area of land and waters encompassing the whole of the Yorke Peninsula in South Australia and part of the surrounding sea. 2 Section 87 of the Native Title Act 1993 (Cth) (NT Act) confers power on this Court to make a determination of native title with the consent of all the parties. The parties now seek a determination of native title by consent with respect to the land and waters forming the subject of the claim. 3 For the reasons that follow, I am satisfied that a determination of native title should be made substantively in the terms sought by the parties. The Determination Area 4 The outer boundaries of the determination area fall on a line 5 km seaward of the high water mark off the shores of the Yorke Peninsula and its nearby islands. On the mainland, the boundary extends northward from a point near Port Wakefield to a point near Redhill, then westward to a point near Fisherman Bay where it meets the sea. 5 The British asserted sovereignty over the determination area in 1788. In 1802, the waters off Yorke Peninsula were explored by Captain Matthew Flinders and Captain Nicolas Baudin. From their ships they reported their observations of people and campfires. We now know those people to form part of an Aboriginal society, the Narungga People. The present day claimants include the descendants of those that Flinders and Baudin observed. This determination recognises the rights and interests in the claim area that are possessed by them under and in accordance with their laws and customs. Those laws and customs have been acknowledged and observed since before sovereignty and have survived the onslaught of European settlement in the area. The requirements for a consent determination 6 The objects of the NT Act are inter alia to provide for the recognition of native title and to establish a mechanism for determining native title claims: NT Act, s 3. The preamble to the NT Act sets out the considerations that were taken into account by Parliament when enacting the provisions contained in it. As the preamble states, the High Court has rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement and held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands: Mabo v Queensland (No 2) (1992) 175 CLR 1. The NT Act establishes procedures for the just and proper ascertainment of native title rights and interests. As the preamble states, the object of the NT Act is to ensure that, if possible, that is done by conciliation and, if not, in a manner that has due regard to their unique character. 7 Section 87 is central to the conciliation processes established under the NT Act. In cases where an order is made under s 87 it is not necessary for the Court to resolve the claim upon a contested hearing. By their agreement the parties have avoided the expense and inconvenience of a trial and they are to be commended for resolving the claim in the conciliatory way. 8 The Court may make a determination by consent under s 87 of the NT Act provided that its essential conditions are satisfied. 9 It is first necessary that the period specified in the notice given under s 66 of the NT Act in relation to the native title claim has ended: NT Act, s 87(1). That condition is satisfied here. 10 Next, there must be an agreement reached between the parties on the terms of an order in relation to the proceedings (NT Act, s 87(1)(a)(i)) and the terms of the agreement must be in writing, signed by or on behalf of the parties and filed in the Court (NT Act, s 87(1)(b)). Those conditions were met by the filing of the parties' agreement on 6 February 2023. 11 The Court must also be satisfied that it has the power to make an order in, or consistent with, the terms of the agreement (NT Act, s 87(1)(c)) and that it is appropriate to make the orders sought (NT Act, s 87(1A)). I will now explain how those remaining requirements are satisfied. The Court has power to make the order 12 The expressions "native title" and "native title rights and interests" are defined in s 223 of the NT Act to mean 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. 13 A determination of native title must set out the detail of the matters mentioned in s 225 of the NT Act: NT Act, s 94A. It defines the expression "determination of native title" as follows: 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. 14 The determination sought by the parties specifies those parts of the determination in which native title exists (Schedules 3, 4 and 7) and those parts in which native title has been extinguished (Schedules 5 and 7). In respect of those areas of land and sea where native title exists, the determination: (1) identifies (at [15]) the persons, or each group of persons, holding the common or group rights comprising the native title in the positive determination area; (2) sets out (at [16]) the nature and extent of the native title rights and interests in relation to the area and (at [17] to [21]) the limitations on their exercise; (3) sets out (at [22]) the nature and extent of other interests in the positive determination area; (4) describes (at [23]) the relationship between the native title rights and interests described at [16] to [20] and the other interests described at [22]; and (5) states (at [18]) that the native title rights and interests area do not confer possession, occupation, use and enjoyment of the land and waters to the exclusion of all others. 15 I am satisfied that the requirements of s 94A are complied with and that the Court has the power to make the order substantially in the form sought by the parties. It is appropriate to make the orders 16 In Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 North J said, of s 87 of the NT Act (at [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. 17 His Honour went on to say that the primary consideration for the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: at [37]. The Court should be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for the orders to be made: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109. The State's task assumes critical importance for, as French J said in Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 (at [3]), a determination as to whether or not native title exists binds not only the parties to the proceedings, but is good against all of the world. 18 In Nelson v Northern Territory (2010) 190 FCR 344 Reeves J said: 12 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. 13. I respectfully agree with North J in these observations. In my view, it would be perverse to replace a trial before the Court with a trial conducted by the State party respondent and I do not consider that is what is intended by the provisions of s 87 of the Act. 19 On the material before me I am satisfied that all of the parties to the consent determination have had independent and competent legal advice in the proceedings and that the agreement now before the Court has been reached on an informed basis. It is the culmination of years of investigation and negotiation. As a part of that process, the State and the authorised applicant have agreed upon measures for the payment of compensation for the loss of native title brought about by extinguishing acts. This determination will come into effect upon the registration of that agreement. I am satisfied that it is appropriate to condition the Court's orders in that way. 20 I am also satisfied that the State has thoroughly assessed the claim so as to establish that there is a credible basis for it. To that end, the State considered reports of an archaeologist, an anthropologist and an historical genealogist, commissioned by the applicant. The State then commissioned independent anthropological and historical assessments before forming a view that the determination was justifiable on all of the materials. 21 The State accepts that the Narungga People continue to acknowledge and observe traditional laws and customs giving rise to rights and interests in the land and waters. It is those laws and customs that define the Narungga People as a society. Their observance of their laws and customs in the determination area has continued substantially uninterrupted since sovereignty. Members of the claim group provided evidence supporting their continuing connection with the determination area by activities undertaken in accordance with their traditional laws and customs: speaking for and taking responsibility for country, camping and visiting, hunting, fishing and other sea based activities, sharing cultural knowledge about sites, spiritual practices including smoking ceremonies and the continued teaching of dreaming stories relating to the to the area. 22 The rights and interests set out at [16] of the determination are consistent with the rights and interests that would have been possessed traditionally, for generations before Flinders and Baudin surveyed the shores. 23 As the settlers' "stock runs" traversed the Yorke Peninsula, Aboriginal populations were disrupted and dislocated. In 1867, the Point Pearce Mission was established. The majority of Aboriginal people located at the mission were Narungga. Point Pearce is now run by the Narungga People and remains a significant location for them in ensuring the survival of their cultural identity. The Court sits at Point Pearce today for the purpose of delivering this determination of native title. 24 Consistent with the objectives of the NT Act, the determination now made provides certainty to all persons having rights and interests in the determination area, both in the present day and for generations to come. The parties are to be commended for the considerable effort in resolving the claim in a conciliatory way. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate: Dated: 14 March 2023 Schedule 1 – Location of and areas comprising the Determination Area External Boundary Description Part A Commencing at the point being the intersection of a straight line between Longitude 137.869716 East, Latitude 33.518038 South and Longitude 137.893541 East, Latitude 33.531269 South with a line 100 metres seaward of mainland Lowest Astronomical Tide [being a point on the southern portion of the external boundary of native title determination SAD6012/1998 Nukunu Part A (SCD2019/001)]. Then generally south-easterly in straight lines through the following coordinate points: Longitude East Latitude South 137.893541 33.531269 137.895521 33.535857 then south-easterly along a straight line between Longitude 137.895521, Latitude 33.535857 South and Longitude 137.904681 East, Latitude 33.547279 South to its intersection with a line 100 metres seaward of mainland Lowest Astronomical Tide at Latitude 33.540156 South [being along a portion of the southern portion of the external boundary of native title determination SAD6012/1998 Nukunu Part A (SCD2019/001)]. Then generally westerly, generally north-westerly and generally north-easterly along a line 100 metres seaward of mainland Lowest Astronomical Tide to the point of commencement. Part B Commencing at the point being the intersection of a straight line between Longitude 137.895521, Latitude 33.535857 South and Longitude 137.904681 East, Latitude 33.547279 South with a line 100 metres seaward of mainland Lowest Astronomical Tide at Latitude 33.540323 South [being a point on the southern portion of the external boundary of native title determination SAD6012/1998 Nukunu Part A (SCD2019/001)]. Then generally south-easterly and generally easterly in straight lines through the following coordinate points: Longitude East Latitude South 137.904681 33.547279 137.915914 33.555441 137.930463 33.560768 137.934061 33.561752 137.940852 33.563610 137.948906 33.563614 137.961617 33.563620 137.970006 33.563624 137.981550 33.563630 137.998988 33.561866 138.033447 33.557626 138.055032 33.554090 138.068316 33.551614 138.080770 33.549847 138.101031 33.548751 138.125999 33.544788 138.132013 33.543834 138.147123 33.540524 138.169450 33.535919 138.199262 33.531781 138.207856 33.531515 [being along a portion of the southern portion of the external boundary of native title determination SAD6012/1998 Nukunu Part A (SCD2019/001)]. Then generally southerly in straight lines through the following coordinate points: Longitude East Latitude South 138.214460 33.536738 138.221562 33.560292 138.222025 33.612458 138.224561 33.621712 138.224534 33.653685 138.212948 33.687517 138.211275 33.692400 138.209193 33.748775 138.211715 33.773174 138.204747 33.783370 138.209841 33.797815 138.208828 33.808450 138.192564 33.843370 138.179856 33.865096 138.169189 33.900850 138.161561 33.908527 138.161567 33.922561 138.160553 33.931494 138.166152 33.940410 138.165647 33.948917 138.180512 33.962146 138.188038 33.968840 138.202797 33.984958 138.208907 33.999399 138.208409 34.024917 138.204850 34.030456 138.203837 34.040240 138.204860 34.053421 138.199274 34.076828 138.185042 34.104512 138.163699 34.156032 138.151493 34.163298 138.148451 34.184996 then south-westerly along a straight line between Longitude 138.148451, Latitude 34.184996 South and Longitude 138.125561 East, Latitude 34.204645 South to its intersection with a line 100 metres seaward of mainland Lowest Astronomical Tide. Then generally north-westerly, generally southerly and generally south-westerly, along a line 100 metres seaward of mainland Lowest Astronomical Tide to its intersection with a line 100 metres seaward of Lowest Astronomical Tide northerly of a portion of land known as Chinamans Hat Island (Section 116, Hundred of Warrenben), then generally south-easterly, generally south-westerly and generally northerly along said line to its intersection with a line 100 metres seaward of mainland Lowest Astronomical Tide, then generally westerly, generally north-westerly and generally north-easterly along a line 100 metres seaward of mainland Lowest Astronomical Tide to the point Longitude 136.843902 East, Latitude 35.218353 South. Then generally westerly in straight lines through the following coordinate points: Longitude East Latitude South 136.843298 35.217929 136.842757 35.217639 136.841970 35.217276 136.841246 35.217008 136.840569 35.216814 136.840141 35.216727 136.839708 35.216696 136.838942 35.216695 136.838288 35.216772 136.837636 35.216958 136.836760 35.217318 136.834884 35.218185 136.833859 35.218609 the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide southerly of a portion of land known as Middle Island (Section 958, Out of Hundreds (Kingscote)), then generally westerly along said line to the point Longitude 136.826305 East, Latitude 35.216403 South. Then generally north-westerly in straight lines through the following coordinate points: Longitude East Latitude South 136.825737 35.215389 136.825333 35.214419 136.825067 35.213875 136.824858 35.213592 136.824548 35.213307 136.824260 35.213115 136.823917 35.212942 136.823532 35.212793 136.823142 35.212685 136.822441 35.212595 136.821443 35.212587 the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide southerly of an un-named portion of land permanently above Mean High Water Mark, then generally westerly, generally northerly and generally easterly along said line to the point Longitude 136.822028 East, Latitude 35.209537 South. Then generally south-easterly in straight lines through the following coordinate points: Longitude East Latitude South 136.822558 35.209752 136.823271 35.209906 136.823833 35.209945 136.825536 35.209937 136.826578 35.210079 136.827163 35.210224 136.827763 35.210418 136.829060 35.210972 the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide northerly of a portion of land known as Middle Island (Section 958, Out of Hundreds (Kingscote)), then generally south-easterly along said line to the point Longitude 136.834394 East, Latitude 35.212501 South. Then generally south-easterly and generally north-easterly in straight lines through the following coordinate points: Longitude East Latitude South 136.835290 35.213032 136.835867 35.213305 136.836272 35.213449 136.836615 35.213518 136.837038 35.213556 136.837642 35.213571 136.838166 35.213548 136.838763 35.213466 136.839376 35.213316 136.839810 35.213167 136.840691 35.212798 136.841095 35.212587 136.841494 35.212309 136.841609 35.212194 136.841804 35.211910 the latter being a point on a line 100 metres seaward of mainland Lowest Astronomical Tide, then generally northerly along a line 100 metres seaward of mainland Lowest Astronomical Tide to its intersection with a line 100 metres seaward of Lowest Astronomical Tide south-easterly of a portion of land known as Royston Island (Section 959, Out of Hundreds (Kingscote)), then generally south-westerly, generally westerly, generally northerly, generally easterly and generally south-easterly along said line to its intersection with a line 100 metres seaward of mainland Lowest Astronomical Tide then generally northerly and generally north-easterly along a line 100 metres seaward of mainland Lowest Astronomical Tide to the point Longitude 136.940841 East, Latitude 35.104642 South. Then generally northerly in straight lines through the following coordinate points: Longitude East Latitude South 136.941198 35.103913 136.941481 35.103163 136.941698 35.102375 136.942013 35.100911 136.942108 35.100361 136.942168 35.099698 136.942162 35.098311 the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide westerly of a portion of land known as Ella Rock (Section 115, Out of Hundreds (Kingscote)), then generally northerly and generally easterly along said line to the point Longitude 136.944378 East, Latitude 35.097030 South. Then generally easterly and generally north-easterly in straight lines through the following coordinate points: Longitude East Latitude South 136.945091 35.096984 136.946640 35.096719 136.947239 35.096704 136.947551 35.096756 136.947876 35.096856 136.948940 35.097348 136.949386 35.097508 136.949885 35.097594 136.950377 35.097573 136.950670 35.097502 136.950957 35.097383 136.951241 35.097219 136.951521 35.097007 136.952070 35.096440 136.952616 35.095676 the latter being a point on a line 100 metres seaward of mainland Lowest Astronomical Tide, then generally north-easterly, generally north-westerly and generally north-easterly along a line 100 metres seaward of mainland Lowest Astronomical Tide to the point Longitude 136.968491 East, Latitude 34.970275 South. Then generally westerly in straight lines through the following coordinate points: Longitude East Latitude South 136.968250 34.970031 136.967974 34.969822 136.967650 34.969633 136.967334 34.969504 136.966708 34.969344 136.966280 34.969304 136.965532 34.969296 the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide southerly of a portion of land known as Swincer Rocks (eastern formation), then generally westerly along said line to the point Longitude 136.964295 East, Latitude 34.968975 South. Then generally westerly in straight lines through the following coordinate points: Longitude East Latitude South 136.963918 34.968774 136.963558 34.968635 136.963173 34.968538 136.962776 34.968482 136.962022 34.968454 136.960578 34.968562 136.959921 34.968568 136.958874 34.968516 136.957902 34.968384 136.957037 34.968193 136.956049 34.967899 136.955498 34.967642 136.954991 34.967276 the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide south-westerly of a portion of land known as Swincer Rocks (western formation), then generally northerly and generally easterly along said line to the point Longitude 136.957889 East, Latitude 34.965141 South. Then generally south-easterly and generally north-easterly in straight lines through the following coordinate points: Longitude East Latitude South 136.959054 34.966204 136.959387 34.966442 136.959731 34.966602 136.960087 34.966719 136.960623 34.966849 136.961137 34.966929 136.961544 34.966959 136.961908 34.966951 136.962734 34.966805 136.963232 34.966648 136.964992 34.965949 the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide northerly of a portion of land known as Swincer Rocks (eastern formation), then along said line to the point Longitude 136.966099 East, Latitude 34.965834 South. Then generally easterly and generally north-easterly in straight lines through the following coordinate points: Longitude East Latitude South 136.966687 34.965830 136.967114 34.965752 136.967511 34.965631 136.968050 34.965414 136.968541 34.965181 136.968812 34.965014 136.969237 34.964687 136.969761 34.964192 136.970073 34.963773 136.970515 34.962968 the latter being a point on a line 100 metres seaward of mainland Lowest Astronomical Tide, then generally north-easterly, generally easterly, generally northerly and generally south-westerly along a line 100 metres seaward of mainland Lowest Astronomical Tide to the point Longitude 137.432056 East, Latitude 34.472987 South. Then generally south-westerly in straight lines through the following coordinate points: Longitude East Latitude South 137.431938 34.474848 137.431744 34.476582 137.431471 34.478181 137.431111 34.479692 137.430654 34.481155 137.430085 34.482624 137.429384 34.484150 137.428535 34.485766 the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide south-easterly of a portion of land known as Rocky Island (Section 916, Out of Hundreds (Maitland) and Allotment 3 of Deposited Plan 31588), then generally south-westerly along said line to the point Longitude 137.423593 East, Latitude 34.488323 South. Then generally south-westerly and generally westerly in straight lines through the following coordinate points: Longitude East Latitude South 137.421720 34.489933 137.419836 34.491453 137.417405 34.493307 137.415402 34.494723 137.413677 34.495825 137.411241 34.497229 137.409650 34.498051 137.408218 34.498675 137.406786 34.499166 137.405059 34.499633 137.402670 34.500168 137.400883 34.500469 137.398463 34.500706 137.396145 34.500847 137.393791 34.500899 137.391290 34.500866 the latter being a point on a line 100 metres seaward of Lowest Astronomical Tide easterly of a portion of land known as Wardang Island (Allotment 100 of Deposited Plan 88262) then generally south-westerly, generally westerly and generally northerly along said line (encompassing any un-named portions of land permanently above Mean High Water Mark immediately adjacent Wardang Island) to its intersection with with a line 100 metres seaward of Lowest Astronomical Tide southerly of portions of land known as Bikini Islets (Sections 1472 and 1473, Out of Hundreds (Maitland) and Allotments 4 and 5 of Deposited Plan 31588), then generally north-westerly, generally north-easterly and generally easterly along said line to its intersection with a line 100 metres seaward of Lowest Astronomical Tide westerly of a portion of land known as Wardang Island (Allotment 100 of Deposited Plan 88262), then generally north-easterly along said line to its intersection with with a line 100 metres seaward of Lowest Astronomical Tide south-westerly of a portion of land known as Boat Rock (Section 860, Out of Hundreds (Maitland) and Allotment 6 of Deposited Plan 31588), then generally north-westerly, generally north-easterly and generally easterly along said line to its intersection with a line 100 metres seaward of Lowest Astronomical Tide northerly of a portion of land known as Wardang Island (Allotment 100 of Deposited Plan 88262), then generally north-easterly along said line to its intersection with with a line 100 metres seaward of Lowest Astronomical Tide south-westerly of portions of land known as Goose Island, Seal Rocks, White Rock Island and Little Goose Island (Sections 878, 879, 1037, 1038, 1039 and 1040 Out of Hundreds (Maitland) and Allotments 7, 8, 9, 10, 11 and 12 of Deposited Plan 31588), then generally westerly, generally north-westerly, generally north-easterly, generally easterly and generally south-easterly along said line to the point Longitude 137.374677 East, Latitude 34.466500 South. Then generally easterly and generally north-easterly in straight lines through the following coordinate points: Longitude East Latitude South 137.375768 34.467166 137.376822 34.467738 137.377909 34.468257 137.379025 34.468724 137.380174 34.469137 137.381372 34.469504 137.382596 34.469818 137.383838 34.470076 137.385053 34.470273 137.386263 34.470411 137.387587 34.470504 137.389044 34.470551 137.390786 34.470553 137.392216 34.470510 137.393738 34.470395 137.394892 34.470255 137.395811 34.470084 137.396527 34.469916 137.397103 34.469737 137.397634 34.469516 137.398809 34.468908 137.399411 34.468555 137.399880 34.468193 137.400338 34.467729 137.400697 34.467262 137.400979 34.466742 137.401217 34.466120 137.401488 34.465195 137.401650 34.464492 137.401757 34.463778 137.401809 34.463054 137.401801 34.462223 the latter being a point on a line 100 metres seaward of mainland Lowest Astronomical Tide, then generally north-easterly, generally northerly, generally north-westerly, generally easterly and generally north-easterly along a line 100 metres seaward of mainland Lowest Astronomical Tide to the point of commencement. Data Reference and source Cadastral and Lowest Astronomical Tide data sourced from Department for Trade and Investment (17 June 2022). Reference datum Geographical coordinates are referenced to the Geocentric Datum of Australia 2020 (GDA2020), in decimal degrees. 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 OF PARTIES SAD 88 of 2022 NARUNGGA NATION NATIVE TITLE CLAIM Respondents Fourth Respondent: BARUNGA WEST COUNCIL Fifth Respondent: BARTHOLOMEW BUTSON Sixth Respondent: JEFFREY WAIT Seventh Respondent: STEWART BUTSON Eighth Respondent: ROBERT BUTSON Ninth Respondent: YORKE PENINSULA FIELD DAYS INCORPORATED Tenth Respondent: RAYMOND LEONARD DUTSCHKE Eleventh Respondent: REX MINERALS (SA) PTY LTD Twelfth Respondent: YORKE PENINSULA COUNCIL Thirteenth Respondent: ADELAIDE BRIGHTON CEMENT LIMITED Fourteenth Respondent: TELSTRA CORPORATION LIMITED Fifteenth Respondent: WAKEFIELD REGIONAL COUNCIL Sixteenth Respondent: SA POWER NETWORKS (FORMERLY KNOWN AS ETSA UTILITIES)