Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 1993

Greater South Australia

Registered with the National Native Title Tribunal on the Native Title Register 14/12/2018.

Between: Vincent Coulthard and others (First Applicant) and Vincent Branson and others (Second Applicant) and Beverley Bates and others (Third Applicant) and State of South Australia and others (Respondents)

Judge: White J

Determination

Native title exists in parts of the determination area

It consists of exclusive and/or non-exclusive native title rights and interests.

Native title holders

Adnyamathanha, Ngadjuri and Wilyakali Peoples.

Exclusive native title rights and interests over part of the determination area

This is the right to possession, occupation, use, and enjoyment of the area described in Schedule 1, to the exclusion of all others.

Non-exclusive native title rights and interests over part of the determination area

These rights exist over the area described in Schedule 2 and include the right to:

• access and move about;
• live, to camp and to erect shelters;
• hunt and fish;
• gather and use the natural resources such as food, plants, timber, resin, ochre and soil;
• cook and to light fires for cooking and camping purposes;
• use the natural water resources;
• conduct ceremonies and hold meetings;
• engage and participate in cultural activities including those relating to births and deaths;
• carry out and maintain burials of deceased native title holders and of their ancestors;
• teach on the Native Title Land the physical and spiritual attributes of locations and sites;
• visit, maintain and preserve sites and places of cultural or spiritual significance to Native Title Holders under their traditional laws and customs; and
• be accompanied on the native title land by those people who, though not Native Title Holders, are: spouses of native title holders; or people required by traditional law and custom for the performance of ceremonies or cultural activities on the native title land; or people who have rights in relation to the Native Title Land according to the traditional laws and customs acknowledged by the native title holders.

Other rights and interests in the determination area include:

• rights and interests in the Determination Area created by the pastoral leases described in Schedule 7;
• rights and interests created by the Crown;
• rights relating to the Automatic Weather Station;
• rights and interests of each of: The Flinders Ranges Council, District Council of Orroroo/Carrieton and District Council of Peterborough;
• rights, interests and entitlements associated with SA Power Network;
• rights and interests of Epic Energy South Australia Pty Ltd pursuant to the Petroleum Act 1940 (SA) and the Petroleum and Geothermal Energy Act 2000 (SA) and as owner of the pipeline for the purposes of the Natural Gas Authority Act 1967 (SA) (noting that the easement does not impact existing or future native title rights);
• rights, interests and entitlements of Boss Uranium Pty Ltd as owner and operator of the Honeymoon Uranium Mine pursuant to the Mining Act 1971 (SA);
• rights, interests and entitlements of Benagerie Gold & Copper Pty Ltd and Consolidated Mining & Civil Pty Ltd as owner and operator of the Portia - North Portia Mine pursuant to the Mining Act 1971 (SA);
• rights, interests and entitlements of Kalkaroo Copper Pty Ltd, as proponent of the Kalkaroo Mine, and/or Havilah Resources Ltd, as holder of the exploration licenses;
• rights, interests and entitlements of Exco Operations (SA) Pty Ltd and Polymetals (White Dam) Pty Ltd as owner and operator of the White Dam Mine and the holder of exploration licenses;
• rights and interests of Telstra Corporation Limited; and
• rights and interests of the parties to the Native Title Mining Agreements listed in Schedule 8.

See Schedule 7 and 8 for further information about the non-native title rights and interests.

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

The Ngadjuri Adnyamathanha Wilyakali Native Title Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and acts as agent for the Adnyamathanha, Ngadjuri and Wilyakali Peoples.

Full text of the determination is available via the URL link above.

Background

The Adnyamathanha, Ngadjuri and Wilyakali Peoples lodged three separate applications for the determination of native title in respect of large areas of land in the east of South Australia. On 26 February 2018, the claims were combined into a single overlap proceeding by court order because the claims (in part) covered the same area. By combining the applications, the Court gave effect to s 67 of the Native Title Act 1993 (Cth).

Native title rights and interests in the determination area were allocated as follows:

• a combination of the Adnyamathanha people and the Ngadjuri people were recognised as the native title holders for the West area of the determination area;
• a combination of all three peoples were recognised as the native title holders of the Central area of the determination area; and
  
• a combination of the Adnyamathanha people and the Wilyakali people were recgonised as the native title holders for East area of the determination area.

Lucy Kingston, on behalf of the South Australian Native Title Services wrote an article titled 'Three Aboriginal Nations Sharing Country'. The article praises the Adnyamathanha, Ngadjuri and Wilyakali Peoples for bringing a joint determination of their native title rights and interests.

In addition, the article documents opinions and statements from some of the native title holders.

According to Chairperson of the Ngadjuri Nation Aboriginal Corporation, Quentin Agius, the decision was 'a long time coming' as the process to achieve recognition begun 15 years ago (Kingston, SANTS).

Mr Agius acknowledged that 'it's been a hard slog' for the three groups to bring a joint claim as 'sometimes you don't see eye to eye' (Kingston, SANTS). However, Mr Aguis emphasised that the outcome of the determination was a 'joyous' occasion (Kingston, SANTS).

Wilyakali Elder and named applicant Maureen O'Donnell also recognised the difficulty associated with bringing a claim, stating that 'it brings to you again the things that were taken away many years ago'. Although Ms O'Donnell similarly highlighted that 'it means so much to be recognised by the white man's law,' to attain recognition for 'what we always knew was true' (Kingston, SANTS).

Details of Judgment

The parties reached agreement as to the terms of the determination of native title pursuant to s 87 of the Native Title Act. The court was satisfied that a determination of native title was within the power of the court.

Native title exists in part of the determination area.

Related Entries

References

Documents

Glossary