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

Eyre Peninsula

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.

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

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.

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.

Related Entries

References