Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 2) [2021] FCA 1620

The Simpson Desert

The determination area covers the town of Oodnadata in far north South Australia, and surrounding areas including the stock reserve known as the Oodnadatta Common. Oodnadatta is located about 160 km south of the Northern Territory border and over 100 km west-north-west of Lake Eyre.

The area is described in Schedule 1 and shown in the map in Schedule 2. The determination area is located in the Pastoral Unincorporated Area.

Between: Aaron Stuart and others named in the Schedule (Arabana No 2 Native Title Claim (Part 2) (SAD38/2013) (First Applicant),

Dean Ah Chee and others named in the Schedule (Walka Wani Oodnadatta Native Title Claim) (SAD78/2013) (Second Applicant) and

Audrey Stewart and others named in the Schedule (Walka Wani Oodnadatta #2 Native Title Claim) (SAD220/2018) (Third Applicant) and

the State of South Australia and others named in the Schedule (Respondents)

Judge: White J

Determination:

Native title exists in parts of the determination area

Native title holders

The native title holders are:

• all those members of the Lower Southern Arrernte descent groups (described in Schedule 4 per the attached Extract) who identify and are recognised as native title holders by other Lower Southern Arrernte native title holders; and
• all those Yankunytjatjara and/or Luritja persons who have a spiritual connection to the determination area by birth or long association (including members of the Yankunytjatjara/Luritja Descent Groups) and are recognised as native title holders by other Yankunytjatjara and/or Luritjanative native title holders.

For more information on the Lower Southern Arrernte and Yankunytjatjara/Luritja Descent Groups, refer to Schedules 4 and 5 in the Extract attached.

Non-exclusive native title rights and interests in the determination area include the right to:

• access and move about the determination area;
• hunt and fish on the land and waters of the determination area without limitation of what purpose;
• gather and use natural resources of the determination area;
• share and exchange the subsistence and other traditional resources of the determination area;
• live, camp and erect shelters and other structures on the determination area;
• cook on the determination area and light fires for domestic purposes;
• engage and participate in cultural activities on the determination area;
• conduct ceremonies and hold meetings on the determination area;
• teach on the determination area the physical and spiritual attributes of locations and sites within the determination area; and
• visit, maintain and protect sites and places of cultural and religious significance on the determination area

Other rights and interests in the determination area include the rights and interests of: 

• the State of South Australia;
• persons who hold valid rights and interests granted or recognised by State or Commonwealth legislation;
• AirServices Australia as the holder of a Licence to Occupy part of the determination area for satellite ground station purposes;
• Telstra Corporation Limited; and
• 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.

At the time of writing, no prescribed body corporate has been registered for the area. The native title is not to be held in trust.

Background

On 1 March 2013, the Arabana People filed a native title application (the Arabana No 2 Application, SAD38/2013) over two separate areas (Part 1 and Part 2 areas). A determination of native title was made by consent over the Part 1 area, near Maree, in Stuart v State of South Australia (No 3) [2021] FCA 230. The Part 2 area concerns Oodnadatta and is subject to consideration in this present determination [2]-[4].

The Walka Wani People, who are comprised of Lower Southern Arrernte and Yankunytjatjara/Luritja People brought two applications, the first on 12 April 2013 (SAD78/2013) and the other on 14 September 2018 [5]. The two Walka Wani applications together overlap exactly the area of the Arabana Part 2 claim [5]. 

As contested overlapping claims can lead to conflict and tension between claim groups, the Court ordered two mediations by Registrars which were conducted in 2015 and 2018 - neither resulted in a mediated outcome and the parties' positions seemed intractable [10]. Thus, the Court ordered, pursuant to s 67 of the Native Title Act 1993 (Cth) (NTA) for the Arabana, and the two Walka Wani applications to be dealt with in one proceeding known as the Oodnadatta Common Overlap Proceeding [11].

Details of the Judgment

The State of South Australia argued that neither the Arabana nor the Walka Wani had shown their connection to the Overlap Area for the purpose of establishing native title: the Arabana not having maintained connection, and the Walka Wani not having had connection at the time of effective British sovereignty [59].

White J, in assessing the continuity of the use of natural resources, the practice of customs and traditions, and other evidence that the Arabana People relied upon, was not satisfied that the Arabana People had shown their maintenance of connection with the Overlap Area and their claim was dismissed [907]-[916].

White J found that the Walka Wani did have non-exclusive native title rights and interests by virtue of their acknowledgment and observance of traditional law and custom over the Overlap Area at the time of effective sovereignty, subject to the issue of tenure, and the Walka Wani applications succeeded [985]-[986].

The issue of tenure

The Overlap Area comprised 156 allotments. The State and the Walka Wani agreed that native title existed over 25 of the allotments and that native title had been extinguished over 72 [988-994].

Whilst the Walka Wani contended that s 47A of the NTA applied to disregard extinguishment in relation to 58 allotments [995], White J concluded that extinguishment could be disregarded over the 42 allotments described in Part 2 of Schedule 3 (attached).

Native title had been wholly extinguished over a total of 93 allotments as described in Schedule 6 (attached).

Native title exists in parts of the determination area

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