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Nicholls v State of South Australia [2015] FCA 1407

Date:

16 December 2015

Sub Category:

Consent Determination (Native Title Act)

Place:

In the vicinity of the Township of Innaminka, North East South Australia

State/Country:

South Australia, Australia

The determination area is outlined in Schedule 1 of the judgment. The area stretches across seven pastoral leases and includes Coongie Lakes National Park, Innamincka Regional Reserve and Strzelecki Regional Reserve, stretching from South Australia's far northeast to the Queensland border. The determination area covers approximately 40,304 square kilometres of land.

Legal Status:

Registered on the National Native Title Register.

Legal Reference:

Tribunal file no.: SCD2015/003; Federal court file no.: SAD6024/1998

Alternative Names:

Yandruwandha/Yawarrawarrka Native Title Claim

Subject Matter:

Native Title

URL:

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca1407

Summary Information:

Yandruwandha/Yawarrawarrka Native Title Claim and The State of South Australia & ors

Judge: Mansfield J

Determination:

Native title exists in parts of the determination area. It consists of non-exclusive native title rights to use and enjoy, in accordance with the Native Title Holders' traditional laws and customs, the Native Title Land .

Native title is held by the Yandruwandha and Yawarrawarrka People.

Non-exclusive native title rights and interests in the determination area consist of:

- the right to access and move about;
- the right to live, to camp and, for the purpose of exercising the Native Title Rights and Interests, to erect shelters and other structures;
- the right to fish;
- the right to hunt;
- the right to gather and use the natural resources of the Native Title Land such as food, medicinal plants, wild tobacco, timber, resin, and stone but excluding those resources referred to in item 2 of Schedule 4;
- the right to share and exchange the subsistence and other traditional resources of the Native Title Land;
- the right to use the natural water resources of the Native Title Land;
- the right to cook and to light fires for domestic purposes but not for the clearance of vegetation;
- the right to engage and participate in cultural activities including those relating to births and deaths;
- the right to conduct ceremonies and hold meetings;
- the right to bury Yandruwandha Yawarrawarrka people on Native Title Land
- the right to teach on the Native Title Land the physical and spiritual attributes of locations and sites;
- the right to visit, maintain and protect sites and places of cultural and religious significance to the Native Title Holders under their traditional laws and customs;
- the right to be accompanied on to the Native Title Land 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 Native Title Land; or
(iii) people who have rights in relation to the Native Title Land according to the traditional laws and customs acknowledged by the Native Title Holders.

The native title rights and interests are subject to and exercisable in accordance with:

- the traditional laws and customs of the Native Title Holders;
- the valid laws of the State and Commonwealth, including the common law.
For the avoidance of doubt, the native title rights and interests in relation to waters are subject to the Natural Resources Management Act 2004 (SA).

General limitations:

- the native title rights and interests described in do not confer possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of others;
- the native title rights and interests are for personal, domestic and non-commercial communal use.

There are no native title rights in or in relation to:

- Minerals, as defined in s 6 of the Mining Act 1971 (SA); or
- Petroleum, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA); or
- a naturally occurring underground accumulation of a regulated substance as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; or
- a natural reservoir, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth;
- geothermal energy, as defined in s 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.

Non-native title rights and interests that exist within the determination area:

1. the interests within the Determination Area created by the following pastoral leases:

Lease name	Pastoral Lease No	Crown Lease
Beckwith	PE2387A	CL 1597/91
Bollards Lagoon	PE2185	CL 1227/27
Clifton Hills	PE2387	CL 1597/90
Clifton Hills	PE2421	CL 1597/92
Gordillo Downs	PE2524	CL 1601/59
Dickinna	PE2421A	CL 1597/93
Gidgealpa	PE2425	CL 1333/38
Merty Merty	PE2422	CL 1326/50
Murnpeowie	PE2519	CL 1598/37
Pandie Pandie	PE2406	CL 1350/18
Tinga Tingana	PE2452	CL 1356/29
White Catch	PE2186	CL 1229/2

2. the interests of the Crown in right of the State of South Australia;

3. in relation to the Strzelecki Regional Reserve, the lnnamincka Regional Reserve and Malkumba-Coongie Lakes National Park:
(i) the rights and interests of the Crown of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA) and the Wilderness Protection Act 1992 (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) and the Wilderness Protection Act 1992 (SA);

4. in relation to the lnnamincka Regional Reserve, the rights of the lessee under Crown Lease 1625/52 granted under section 35 of the National Parks and Wildlife Act 1972 (SA);

5. 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 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), Mining Act 1971 (SA), Petroleum Act 1940 (SA),
Cooper Basin (Ratification) Act 1975 (SA), Petroleum and Geothermal Energy Act 2000 (SA) and Opal Mining Act 1995 (SA), all as amended from time to time;

6. rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth;

7. 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;

8. the rights and interests of all parties to the Yandruwandha Yawarrawarrka Native Title Claim Settlement Indigenous Land Use Agreement;

9. the rights and interests of Telstra Corporation Limited (ACN 051 775 556):
(i) as the owner or operator of telecommunications facilities on 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), and the Telecommunications Act 1991 (Cth), and the Telecommunications Act 1997 (Cth) including rights:
(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 telecommunications facilities; and
(iii) for its employees, agents or contractors to access its telecommunications facilities on, and in the vicinity of, the Determination Area in performance of their duties; and
(iv) under any lease, licence, access agreement or easement relating to its telecommunications facilities on the Determination Area including under Lease No. 11486698 of Crown Pastoral Lease No. 2185;

10. the rights and interests of Epic Energy South Australia Pty Ltd (formerly Tenneco Gas South Australia Pty Ltd) ("Epic"):
(i) as:
(1)holder 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 and Geothermal Energy Act 2000 (SA); and
(2) 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;

11. the rights and interests of the "Producers" as defined in the Cooper Basin (Ratification) Act 1975 (SA):
(i)as the holders of Petroleum Production Licences (PPL) PPL7, PPL8, PPL9, PPL10, PPL11, PPL12, PPL13, PPL14, PPL15, PPL16, PPL17, PPL18, PPL19, PPL20, PPL22, PPL23, PPL24, PPL25, PPL27, PPL30, PPL31, PPL33, PPL34, PPL36, PPL38, PPL39, PPL40, PPL41, PPL42, PPL43, PPL44, PPL57, PPL58, PPL59, PPL65, PPL69, PPL71, PPL72, PPL73, PPL74, PPL78, PPL79, PPL80, PPL82, PPL85, PPL86, PPL87, PPL88, PPL89, PPL90, PPL92, PPL93, PPL96, PPL97, PPL98, PPL99, PPL100, PPL101, PPL102, PPL103, PPL104, PPL105, PPL106, PPL107, PPL108, PPL109, PPL110, PPL111, PPL113, PPL114, PPL115, PPL116, PPL117, PPL119, PPL120, PPL128, PPL129, PPL130, PPL132, PPL133, PPL134, PPL135, PPL138, PPL139, PPL141, PPL146, PPL149, PPL151, PPL155, PPL159, PPL163, PPL164, PPL166, PPL169, PPL172, PPL173, PPL174, PPL179, PPL181, PPL184, PPL186, PPL188, PPL189, PPL190, PPL192, PPL193, PPL195, PPL196, PPL198, PPL228, PPL231, PPL232, PPL234, PPL235, PPL236 and PPL237 (collectively described as the SACB JV PPLs) granted, regulated or renewed pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) or the Petroleum and Geothermal Energy Act 2000 (SA);
(ii) as the owners and operators of flow-lines and other infrastructure associated with, reasonably necessary for or incidental to the Producer's enjoyment of the SACB JV PPLs pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) and the Petroleum and Geothermal Energy Act 2000 (SA);
(iii) created pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) or the Petroleum and Geothermal Energy Act 2000 (SA); and
(iv) through their employees, agents, contractors or representatives, to enter the Determination Area and do all things necessary to exercise those rights and interests in, or in the vicinity of, the Determination Area in performance of their duties;

12. the rights and interests of the holders of:
(i) PPL26, PPL76, PPL77, PPL112, PPL118, PPL121, PPL122, PPL123, PPL125, PPL131, PPL136,
PPL142, PPL147, PPL152, PPL156, PPL158, PPL167, PPL182, PPL187, PPL191, PPL194, PPL197, PPL200, PPL201, PPL206, PPL208, PPL211, PPL215, PPL225, PPL226, PPL227, PPL229 and PPL252 (collectively described as the Other PPLs) granted, regulated or renewed pursuant to the
Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA)(repealed) or the Petroleum and Geothermal Energy Act 2000 (SA);
(ii) Petroleum Retention Licences (PRL) PRL28, PRL29, PRL30, PRL31, PRL111, PRL112, PRL113, PRL114, PRL115, PRL192, PRL193, PRL203, PRL204, PRL205 and PRL206;
(iii) Petroleum Exploration Licences (PEL) PEL100, PEL513 and PEL570;
(iv) Pipeline Licences (PL) PL2 (Moomba - Port Bonython), PL5 (Ballera -Moomba), PL9 (South West Queensland - Mettika), PL15 (SNQLD Border -Kerna), PL17 (Queensland- Moomba) and PL20 (Cook- Merrimelia); and
(v) Associated Activities Licences (AAL) AAL187, AAL195, AAL196, AAL231, AAL232 and AAL233;

13. the rights and interests of the holders of the interests listed at (12) above:
(i) as the owners and operators of flow-lines and other infrastructure associated with, reasonably necessary for or incidental to the holders' enjoyment of the Other PPLs pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) and the Petroleum and Geothermal Energy Act 2000 (SA);
(ii) created pursuant to the Cooper Basin (Ratification) Act 1975 (SA), the Petroleum Act 1940 (SA) (repealed) or the Petroleum and Geothermal Energy Act 2000 (SA); and
(iii) through their employees, agents, contractors or representatives, to enter the Determination Area and do all things necessary to exercise those rights and interests in, or in the vicinity of, the Determination Area in performance of their duties;

14. the rights and interests of the holders of Extractive Mineral Leases (EML) EML4885 and EML5265:
(i) created pursuant to the Mining Act 1971 (SA); and
(ii) through their employees, agents, contractors or representatives, to enter the Determination Area and do all things necessary to exercise those rights and interests in, or in the vicinity of, the Determination Area in performance of their duties;

15. the rights and interests of the Outback Communities Authority:
(i) under the Outback Communities (Administration and Management) Act 2009 (SA);
(ii) as an entity exercising statutory powers in respect of land and waters within the Determination Area; 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).

The relationship between the native title rights and interests and the non-native title rights and interests is that:

- 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; and otherwise,
- 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 Native Title Act 1993 (Cth) or the Native Title (South Australia) Act 1994 (SA), do not extinguish them.

Rights of the Parties:

- the Parties have liberty to apply on 14 days' notice to a single judge of the Court to establish the precise location and boundaries of any public works and adjacent land and waters or to establish the effect on native title rights and interests of any public works.

Provisions relevant to the Native Title rights:

- the Yandruwandha Yawarrawarrka Traditional Land Owners Aboriginal Corporation ICN 3840, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate;

- native title is not to be held in trust for the Yandruwandha and Yawarrawarrka People.

Detailed Information:

Background

The native title application was first made on 8 January 1998, and has since been amended to reflect the final decision of the Yandruwandha and Yawarrawarrka People about their claim. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Yandruwandha and Yawarrawarrka People as the holders of native title rights and interests over their country.

There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the Yandruwandha and Yawarrawarrka claim.

The successful native title claim has provided the Yandruwandha and Yawarrawarrka People with formal recognition of approximately 40,304 square kilometres of land.

Details of Judgement

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Yandruwandha and Yawarrawarrka People in relation to part of the land and waters covered by the Yandruwandha and Yawarrawarrka claim. A signed document was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

The court was satisfied that a determination of native title was within the power of the court.

Yandruwandha/Yawarrawarrka Merty Merty Pastoral Indigenous Land Use Agreement (ILUA)

Yandruwandha/Yawarrawarrka Tinga Tingana Pastoral Indigenous Land Use Agreement (ILUA)

Yandruwandha/Yawarrawarrka Bollards Lagoon Pastoral Indigenous Land Use Agreement (ILUA)

Yandruwandha/Yawarrwarrka Gidgealpa Pastoral Indigenous Land Use Agreement (ILUA)

Yandruwandha/Yawarrawarrka Innamincka Pastoral Indigenous Land Use Agreement (ILUA)

Yandruwandha/Yawarrawarrka Petroleum Conjunctive Indigenous Land Use Agreement (ILUA)

Yandruwandha/Yawarrawarrka Cordillo Downs Pastoral Indigenous Land Use Agreement (ILUA)

Yandruwandha Yawarrawarrka Fishing Indigenous Land Use Agreement (ILUA)

Yandruwandha/Yawarrawarrka Claim Settlement Indigenous Land Use Agreement (ILUA)

Organisation

Yandruwandha/ Yawarrawarrka Traditional Land Owners (Aboriginal Corporation) RNTBC

State of South Australia - Respondent