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

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 14 December 2017
Sub Category:Consent Determination (Native Title Act)
Place:

Southern-Central South Australia

State/Country:South Australia, Australia
The determination area covers approximately 7,173 square kilometres and is located east of Adelaide, running from Murray Bridge southwest to Cape Jervis and southeast almost to Tintinara. See the attached 'Schedule 1 - External Boundaries of Determination Area' for detailed coordinate information and 'Schedule 2 - Maps Part A - External Boundaries of Determination Area' for a visual representation of determination area. The area is within the local government areas of Alexandrina Council, City of Victor Harbor, Coorong District Council, District Council of Yakalilla and the Rural City of Murray Bridge.
Legal Status:

Registered on the National Native Title Register.

Legal Reference: Federal Court No: SAD6027/1998; National Native Title Tribunal No: SCD2017/002.
Alternative Names:
  • Ngarrindjeri and Others Native Title Claim
  • Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A)
  • Subject Matter:Access | Native Title
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2017/1514.html?context=1;query=Sumner%20v%20State%20of%20South%20Australia%20(Ngarrindjeri%20Native%20Title%20Claim%20Part%20A)%20;mask_path=
    Summary Information:

    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.

    Detailed Information:

    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. 

    Outcomes:

    Native title exists in parts of the determination area.


    Related Entries

    Organisation
  • National Native Title Tribunal
  • State of South Australia - Respondent
  • Ngarrindjeri Aboriginal Corporation RNTBC
  • Alexandrina Council
  • City of Victor Harbor
  • Coorong District Council
  • District Council of Yakalilla
  • Rural City of Murray Bridge
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • National Parks and Wildlife Act 1972 (SA)
  • Wilderness Protection Act 1992 (SA)
  • Harbors and Navigation Act 1993 (SA)
  • Aboriginal Lands Trust Act 1966 (SA)
  • 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 Act 2007 (SA)
  • Post and Telegraph Act 1901 (Cth)
  • Telecommunications Act 1975 (Cth)
  • Australian Telecommunications Corporation Act 1989 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • People
  • First Nations of the South East
  • Ngarrindjeri People - Native Title Claimant

  • References

    News Item
    Peri Strathearn (2017) Ngarrindjeri native title claims settled

    Documents

    Map
    SCD2017_002 Schedule 2 - Maps Part A - External Boundaries of Determination Area - ( PDF)
    SCD2017_002 Schedule 2 - Maps Part B - Maps where native title is extinguished - Part 1 of 9 - ( PDF)
    SCD2017_002 Schedule 2 - Maps Part B - Maps where native title is extinguished - Part 2 of 9 - ( PDF)
    SCD2017_002 Schedule 2 - Maps Part B - Maps where native title is extinguished - Part 3 of 9 - ( PDF)
    SCD2017_002 Schedule 2- Maps Part B - Maps where native title is extinguished - Part 4 of 9 - ( PDF)
    SCD2017_002 Schedule 2 - Maps Part B - Maps where native title is extinguished - Part 5 of 9 - ( PDF)
    SCD2017_002 Schedule 2 - Maps Part B - Maps where native title is extinguished - Part 6 of 9 - ( PDF)
    SCD2017_002 Schedule 2 - Maps Part B - Maps where native title is extinguished - Part 7 of 9 - ( PDF)
    SCD2017_002 Schedule 2 - Maps Part B - Maps where native title is extinguished - Part 8 of 9 - ( PDF)
    SCD2017_002 Schedule 2 - Maps Part B - Maps where native title is extinguished - Part 9 of 9 - ( PDF)
    National Native Title Tribunal Extract from the Native Title Applications, Registrations Decisions and Determinations Register for SCD2017/002 as at 14/12/2017 (Ngarrinndjeri and Others Native Title Claim) - ( PDF)
    SCD2017_002 Schedule 1 - External Boundaries of the Determination Area - ( PDF)
    SCD2017_002 Schedule 3 - Land and waters where Native Title exists - ( PDF)
    SCD2017_002 - Schedule 4 - extinguishment disregarded - Section 47A - ( PDF)
    SCD2017_002 Schedule 5 - extinguishment disregarded - Section 47B - ( PDF)
    SCD2017_002 Schedule 6 - Land and waters where Native Title has been extinguished - Part 1 of 4 - ( PDF)
    SCD2017_002 Schedule 6 - Land and waters where Native Title has been extinguished - Part 2 of 4 - ( PDF)
    SCD2017_002 Schedule 6 - Land and waters where Native Title has been extinguished - Part 3 of 4 - ( PDF)
    SCD2017_002 Schedule 6 - Land and waters where Native Title has been extinguished - Part 4 of 4 - ( PDF)
    SCD2017_002 Schedule 7 - Native Title has been surrendered pursuant to ILUA - ( PDF)
    SCD2017_002 Schedule 8 - Native Title exists pursuant to ILUA - ( PDF)
    SCD2017_002 Schedule 10 - Existing interests of SA Power Networks - ( PDF)
    SCD2017_002 Schedule 11 - Native Title action filed - Applicants and Respondents - ( PDF)

    Glossary

    Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Native Title Applicants | Registered Native Title Body Corporate (RNTBC) (Native Title Act) (Australia) | Extinguishment (Australia) | National Native Title Tribunal (NNTT) (Australia) | Aboriginal and Torres Strait Islander (Australia) | Applicant | Local Government | Native Title Applications/Claims (Australia) | Native Title Determination (Australia) | Respondent | Native Title Claimants (registered) (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia)

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