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Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724

Category: Case Law
Date: 23 June 2016
Sub Category:Case Law | Litigated Determination
Place:

Eyre Peninsula

State/Country:South Australia, Australia

The determination area is a large area on the Eyre Peninsula. See Schedule 1 for a description and Schedule 2 for a map of the determination area. The determination area is within the jurisdiction of the district councils of Ceduna, Cleve, Lower Eyre Peninsula, Franklin Harbour, Kimba, Franklin Harbour, Wudinna, Streaky Bay and Tumby Bay. The determination area is within the jurisdiction of the city councils of Whyalla (corporated and unincorporated), Flinders Ranges, Port Augusta and Port Lincoln Wudinna.

Legal Status:

Registered on the Native Title Register on 23/06/2018. 

Legal Reference: Federal Court file no.: SAD6011/1998; National Native Title Tribunal file no.: SCD2016/001
Alternative Names:
  • Barngarla Native Title Claim
  • Subject Matter:Native Title
    URL: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/724.html
    Summary Information:

    Between: Barry Croft and others on behalf of the Barngarla native title claim group (Applicant) and State of South Australia and others (Respondents) 

    Judge: Mansfield J

    Determination

    Native title exists in parts of the determination area

    Native title exists in the lands and waters described in Schedule 3. Native title is now recognised over parcels of land where it had been previously extinguished - see Schedules 4 (via the URL link to the determination) and Schedule 5 and Schedule 2 Part B (attached below).

    Native title holders

    Native Title is held by the Barngarla People.

    Exclusive native title rights and interests in parts of the determination area

    Exclusive native title rights held by the Barngarla People exist over the areas set out in Schedule 4 and include the rights:

    • to live on, use and enjoy the land and waters;
    • to make decisions about the use and enjoyment of the land and waters by those Aboriginal people who recognise themselves to be governed by the traditional laws and customers acknowledged by the Native Title Holders;
    • of access to the land and waters;
    • to control the access of other Aboriginal people who recognise themselves to be governed by the same traditional laws and customs acknowledged by the Barngarla People to the land and waters;
    • to use and enjoy resources of the land and waters but excluding those referred to in item 1 of Schedule 6;
    • to control the use and enjoyment of resources on the land and waters by other Aboriginal people who recognise themselves to be governed by the same traditional laws and customs acknowledged by the Barngarla People but excluding those resources referred to in item 1 of Schedule 6;
    • to maintain and protect places of importance under traditional laws, customs and practices on the land and waters; and
    • to conduct burial ceremonies on the land and waters.

    The above rights and interests are for personal, domestic and communal use only. These rights and interests do not include the right
    to trade or commercially use the native title land or its resources.

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

    In relation to the areas set out in Schedule 3, the Barngarla People hold the following non-exclusive rights in relation to lands and waters and includes the rights to:

    • to live on, use and enjoy the land and waters;
    • to make decisions about the use and enjoyment of the land and
      waters by those Aboriginal people who recognise themselves to be
      governed by the traditional laws and customers acknowledged by the
      Native Title Holders;
    • of access to the land and waters;
    • to control the access of other Aboriginal people who recognise
      themselves to be governed by the same traditional laws and customs
      acknowledged by the Barngarla People to the land and waters;
    • to use and enjoy resources of the land and waters but excluding those referred to in item 1 of Schedule 6;
    • to control the use and enjoyment of resources on the land and
      waters by other Aboriginal people who recognise themselves to be
      governed by the same traditional laws and customs acknowledged by the
      Barngarla People but excluding those resources referred to in item 1 of
      Schedule 6;
    • to maintain and protect places of
      importance under traditional laws, customs and practices on the land and
      waters; and
    • to conduct burial ceremonies on the land and waters.

    The above rights and interests are for personal, domestic and communal
    use only. These rights and interests do not include the right
    to trade or commercially use the native title land or its resources.


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

    • interests contained within pastoral leases (refer to Schedule 1 for a list of the pastoral leases);
    • interests of the South Australian Government;
    • any enduring public right to fish;
    • the public right to navigate;
    • any interests in relation to reserves;
    • the interests of the registered proprietors of the lands set out in Schedule 4;
    • the interests of persons who have been granted rights and interests by the South Australian Government or Federal Government;
    • the rights and interests of all parties to the Indigenous Land Use Agreements listed in Schedule 8;
    • the rights and interests of Telstra Corporation Limited (ACN 051 775 556);
    • the rights, interests and entitlements of SA Power Networks to excercise its entitlements and obligations as an operator of the electricity infrastructure;
    • the rights and interests of local government councils;
    • the rights and interests of Epic Energy South Australia Pty Ltd;
    • the rights and interests of Onesteel Manufacturing Pty Ltd;
    • the rights and interests of the holder from time to time of Pipeline Licence No. 2 (PL 2);
    • the rights and interests of Santos Limited, Santos Petroleum Pty Ltd, Santos (BOL) Pty Ltd, Vamgas Pty Ltd, Reef Oil Pty Ltd, Alliance Petroleum Australia Pty Ltd, Bridge Oil Developments Pty Ltd, Delhi Petroleum Pty Ltd, Origin Energy Resources Limited, Basin Oil Pty Ltd and Santos (NARNL Cooper) Pty Ltd under any lease, licence, easement, permit or agreement on the native title land: and
    • the rights and interests of BHP Billiton Olympic Dam Corporation Pty Ltd.

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

    The Barngarla Determination 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 Barngarla people.

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

    Detailed Information:

    Background

    On 4 April 1996, the Applicant applied for a determination of native title. Then, in 2012, the application was split, allowing the Port Augusta Town Area, which is subject to overlapping claims, to be dealt with in a separate application (the Nukunu Native Title Application). In November 2012, a hearing commenced to determine whether there has been, since sovereignty, a continuous acknowledgement and observation of the traditional Barngarla laws and customs by the Barngarla people.

    On 22 January 2015, the court found that the present day Barngarla people have acknowledged and observed traditional Barngarla laws and customs since sovereignty. Accordingly, the Barngarla people have rights and interests over the determination area that can be protected under the Native Title Act 1993 (Cth).

    These rights and interests were determined in this Barngarla Native Title Claim. See details of the judgment below.

    In response to the determination being made, the Barngarla Determination Aboriginal Corporation Board co-chairperson, Emma Richards, said that it had been a long, hard process and that it was a big relief for the Barngarla community. Ms Richards said, "[w]e can now move on reconnecting with country and help kids reconnect with our culture and country." (Port Lincoln Times).

    Details of Judgment:

    The Applicant, the State of South Australia and other respondents
    reached an agreement on the terms of the
    determination area and agreed to resolve issues of extinguishment over a number of certain areas in an Indigenous Land Use Agreement (the Barngarla
    Settlement ILUA).

    The court found that the Barngarla native title group holds native title interests in parts of the determination area. Once the Barngarla Settlement ILUA has been registered, the native title status which was agreed to under the ILUA will take effect over the areas listed in Schedule 7 of the determination. No ILUA has been registered as of 18/02/2021.

    Outcomes:
    Native title exists in parts of the determination area

    Related Entries

    Agreement
  • Port Spencer Indigenous Land Use Agreement (ILUA)
  • Cultana Industrial Estate Crown Land Transfer (No. 1) Indigenous Land Use Agreement (ILUA)
  • Organisation
  • District Council of Streaky Bay - Respondent
  • District Council of Lower Eyre Peninsula - Respondent
  • District Council of Franklin Harbour - Respondent
  • District Council of Elliston - Respondent
  • The Flinders Ranges Council - Respondent
  • City of Port Augusta - Respondent
  • City of Whyalla - Respondent
  • Port Augusta City Council - Respondent
  • City of Port Lincoln - Respondent
  • Francis Capowie Pty Ltd - Respondent
  • Greenfield Pastoral Company Ltd - Respondent
  • Nonning Pastoral Company Pty Ltd - Respondent
  • Broken Hill Proprietary Company Limited - Respondent
  • Epic Energy South Australia Pty Ltd - Respondent
  • Perilya Ltd - Respondent
  • OneSteel Manufacturing Pty Ltd - Respondent
  • Vamgas Pty Ltd - Respondent
  • Basin Oil Pty Ltd - Respondent
  • Alliance Petroleum Australia Pty Ltd - Respondent
  • Origin Energy Resources Limited - Respondent
  • Santos Petroleum Pty Ltd - Respondent
  • Delhi Petroleum Pty Ltd - Respondent
  • Santos Ltd - Respondent
  • Santos (BOL) Pty Ltd - Respondent
  • Reef Oil Pty Ltd - Respondent
  • Bridge Oil Developments Pty Ltd - Respondent
  • Barker Fisheries Pty Ltd - Respondent
  • Boston Bay Rock Lobsters Pty Ltd - Respondent
  • CG Simms Nominees Pty Ltd - Respondent
  • Eyrewoolf Enterprises Pty Ltd - Respondent
  • Fromager Pty Ltd - Respondent
  • Farside Fisheries - Respondent
  • Grand Abalone Nominees Pty Ltd - Respondent
  • H M Pope Pty Ltd - Respondent
  • La Cloture Fisheries Pty Ltd - Respondent
  • Kinnock Pty Ltd - Respondent
  • Kinkawooka Pty Ltd - Respondent
  • MD & RA Lowe Pty Ltd - Respondent
  • Navajo Pty Ltd - Respondent
  • Oceanic Oysters - Respondent
  • R Martinovic (Management) Pty Ltd - Respondent
  • S & Z Lukin Nominees Pty Ltd - Respondent
  • South Australian Oyster Hatchery - Respondent
  • Spencer Gulf Aquaculture Pty Ltd - Respondent
  • Seafood Council (SA) Ltd - Respondent
  • Spencer Gulf Property Pty Ltd - Respondent
  • Tarakan Pty Ltd - Respondent
  • Tuna Boat Owners Association of Australia - Respondent
  • T Garnaut Nominees Pty Ltd - Respondent
  • West Coast Enterprises Pty Ltd - Respondent
  • Wellmet Pty Ltd - Respondent
  • W B Mattner Nominees Pty Ltd - Respondent
  • Boston Island Pty Ltd - Respondent
  • Etsa Utilities - Respondent
  • St John Ambulance Australia SA Inc - Respondent
  • South Australian Apiarists Association Inc - Respondent
  • SA Ambulance Service - Respondent
  • Telstra Corporation Limited - Respondent
  • BHP Billiton Olympic Dam Corporation Pty Ltd - Respondent
  • South Australian Native Title Services Limited - Respondent
  • Wudinna Distrinct Council - Respondent
  • Wildcatch Fisheries SA Inc - Respondent
  • Australian Maritime Safety Authority - Respondent
  • Tasman Resources Ltd - Respondent
  • Commonwealth of Australia - Respondent
  • Wartaka Pastoral Co Pty Ltd - Respondent
  • Santos (NARNL Cooper) Pty Ltd - Respondent
  • Barngarla Determination Aboriginal Corporation RNTBC
  • People
  • Barry Croft and others as the Barngarla Registered Native Title Claimants - Native Title Applicant
  • Barngala People - Native Title Claimant
  • Nukunu People - Respondent
  • Arabana People - Respondent
  • Adnyamathanha People - Respondent
  • Barngarla Native Title Claim Group - Native Title Claimant

  • References

    News Item
    Port Lincoln Times (27 June 2018) Barngarla community celebrates Native Title handover

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