Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1514

Southern-Central South Australia

Registered on the National Native Title Register.

Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1514

Between: Basil Sumner (and others named in Schedule 11) (Applicants) and State of South Australia (and other named in Schedule 11 (Respondents).

Judge: White J.

Where Made: South Australia.

Determination:

Native title exists in part of the determination area: it consists of non-exclusive native title rights.

Native title is held by the Ngarrindjeri People.

Non-exclusive native title rights and interests:

The Ngarrindjeri People have the following non-exclusive native title rights and interests in accordance with traditional laws and customs, as well as South Australian law:

• the right to access and move about the area;
• the right to erect shelters and other structures to live and camp on area;
• the right to hunt and fish;
• the right to gather and use natural resources (any animal, plant, fish and bird life or clay, soil, sand, gravel, rock or ochre);
• the right to share and exchange natural resources;
• the right to use natural water resources;
• the right to cook and light fires (but not for clearing vegetation; 
• the right to conduct ceremonies and hold meetings;
• the right to teach and transfer traditional laws and customs, language and physical/spiritual attributes of sites in the area;
• the right to visit, maintain and protect sites of cultural and religious significance; and
• the right to be accompanied onto the area by non-native title holders who are spouses of native title holders or people requires by traditional law and custom for the performance of ceremonies or cultural activities.

The non-exclusive rights do not create any rights in relation to commercial use of the area or resources from it.

Additionally, the non-exclusive rights do not include the possession, occupation, use and enjoyment of the area to the exclusion of others.

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

The following rights and interests were determined to exist on the date of determination, set out in the attached NNTT extract:

• the rights and interests held by reason of the force and operation of South Australian or Commonwealth legislation;
• the rights and interests of the State of South Australia in relation to the reserves per the attached 'Schedule 3 - Land and Waters where Native Title exists', pursuant to the National Parks and Wildlife Act 1972 (SA) and the Wilderness Protection Act 1992 (SA) and the Harbors and Navigation Act 1993 (SA);
• the interests of the Aboriginal Lands Trust in the area set out in the attached 'Schedule  4', pursuant to the Aboriginal Lands Trust Act 1966 (SA);
• the interests of persons who possess rights and interests pursuant to the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Mining Act 1971 (SA), Petroleum and Geothermal Energy Act 2000 (SA), Opal Mining Act 1995 (SA), Fisheries Management Acts 2007 (SA);
• the rights to access land by an employee or agent of the State or Commonwealth pursuant to their duties and where such access would be permitted to private land;
• the rights and interests of Telstra Corporation Limited (ACN 051 775 556) as the owner of telecommunication facilities within the determination area, 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); and
• the rights and interests of SA Power Networks, set out in the attached document, 'Schedule 10 - Existing interests of the SA Power Networks'.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

Native Title is extinguished in parts of the determination area:
see the attached 'Schedule 2 - Maps Part B - Maps where Native Title is Extinguished' (Parts 1 - 9) and 'Schedule 6 - Land and waters where Native Title has been extinguished' (Parts 1 - 4).

The Ngarrindjeri Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as an agent for the native title holders. The native title is not held on trust for the native title holders.

Note that there is access to the full text of the determination via the URL link.

Background:

The Ngarrindjeri application for a determination of native title was first filed on 6 July 1998, pursuant to s 61 of the Native Title Act 1993 (Cth) (NTA). In 2016 the Applicants reduced the claim area in this application to exclude a portion of land and waters.

The South East First Nations People applied for a determination of native title on 7 July 2017 (SAD180/2017). This claim overlapped a portion of the Ngarrindjeri application claim area. The court subsequently ordered that the Ngarrindjeri application be divided into Part A and Part B respectively.

The Applicants, South Australian Government and other Respondents agreed on the terms of the 'Ngarrindjeri Part A' determination and applied for a determination of native title by consent determination pursuant to s 87 of the NTA.

After a 20 year long legal process the outcome of the Part A consent determination has finally recognised the Ngarrindjeri People's claim to 7,173 square kilometres of land. As Justice Richard White handed down the determination in the Federal Court hearing held on the banks of the River Murray, he noted that the court is making a 'public statement which will assist in the
preservation of (Ngarrindjeri) society and culture' (Peri Strathearn, 2017). Whilst acknowledging that 95 percent of Ngarrindjeri elders had passed away throughout the proceedings, Traditional Owner Darrel Sumner described this determination as a 'milestone in the history of two nations' (Peri Strathearn, 2017). Sumner nonetheless emphasised that the Ngarrindjeri journey for native title was not complete, referring to Part B of the claim. As of November 2020, Part B determinations are ongoing.

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 Nagrrindjeri People in relation to part of the land and waters of the determination area. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth), and requested a determination of Part A without a hearing per s 87(2). The court was satisfied that a determination of native title was within the power of the court. 

Native title exists in parts of the determination area.

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