| Between: Dorothy Turner, Mark Angus, Jean Agius, Denise Varcoe, Jim Abdullah, Loretta Smith, George Tripp, Gladys E Sumner and Glenda Rigney (APPLICANT) and
State of South Australia, Neil Johansen, Wendy Faye Bell, Brenton Paul Bell, Rowland John Beech, Ian Charles Baxter, Barmera District War Memorial Community Centre, Phillipa Mary Austin, Trevor Paul Arnold, Ian Leslie Armstrong, Rodney Norman Stoeckel, South Australia Recreational Fishing Advisory Council Inc, Evelyn Myrtle English, Edward Reginald English, Cornel Craciun, Alexandra Craciun, Maria del Pilar Esteban, Glenda May Clements, Jose Antonio Esteban, Errol Matschoss Motors Pty Ltd, Robert Jan Cornelsen, TG Arnold & Son Pty Ltd, Steven Peter Hudson, Stephen Michael Hogg, Catherine McGill Hewett, Bruce William Hewett, Jung Bahadur Singh Grewal, Keryn Lee Gorman, Trevor Clyde Manuel, Errol Leith Matschoss, Gregory Ronald Micke, Arnold Malcolm Nicolai, Jeanette Margaret O'Leary, Leo John O'Leary, Lynton Murray Scott, Shell Company of Australia Ltd, Carole Anne Stafford, Jayne van der Biezen, Oscar Toneguzzo, Colleen Patricia Thompson, Graham Charles George Stafford, Tony van der Biezen, Jenny Vonic, Leslee Wallace, Maureen Joan Watson, Colin Herbert Wegner, Meredith Mary Wegner, Kris Andre Werner, Suzanne Mary Whetsone, Timothy John Whetstone, South Australian Field & Game Association Inc, South Australian Apiarists Association Inc, Royal Australasian Ornithologists Union, Electranet Pty Ltd, Jacque Zagotsis, Con Zagotsis, Glen Frederick Woolridge, William Roy Wilden, Mid Murray Council, District Council of Renmark Paringa, District Council of Loxton Waikerie, Berri Barmera Council, Commonwealth of Australia, Mitolo Holdings Pty Ltd, John Murray Lunn, Envestra Ltd, Anthony Lever, Berri Irrigation Trust, Josephine Lorna Armstrong, Sietse Venema, Colin Terrence Wesley Venables, Steiner Holdings Pty Ltd, Ian Ross Clements, Gail Rosemary Campain, Cobdogla Irrigation Trust, Anthony Michael English, Michael Richard Kassebaum, Debbie Elizabeth Milburn, Raelene Gloria Leathers, Joanne Keightley, Debra L Scott, St John Ambulance Australia SA Inc, ETSA Utilities, Salwa Valetti, Telstra Corporation Ltd, Director of National Parks, Waikerie Irrigation Trust, Damien John Wilksch, Garry Ian Warrick, South Australian Native Title Services Ltd, Wildcatch Fisheries SA Inc (RESPONDENTS)
Judge: Mansfield J
Where made: Barmera, 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 First Peoples of the River Murray and the Mallee Region.
Non-exclusive native title rights and interests that exist over land in the determination area include:
- the right of access;
- the right to hunt and fish;
- the right to gather and use the natural resources such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers;
- the right to share and exchange the subsistence and other traditional resources;
- the right to take the natural water resources of the Determination Area for domestic use;
- the right to camp and erect temporary shelters;
- the right to cook and to light fires for domestic purposes but not for the clearance of vegetation;
- the right to engage and participate in cultural activities including those relating to births and deaths;
- the right to conduct ceremonies and hold meetings on the Determination Area;
- the right to teach on country the physical and spiritual attributes of locations and sites within the Determination Area;
- the right to visit, maintain and protect sites and places of cultural and religious significance;
- the right to be accompanied on to the Determination Area by non-native title holders who are spouses or are required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area or people who have rights in relation to the Determination Area according to the traditional laws and customs acknowledged by the native title holders.
Non-native title rights and interests that exist within the determination area
These rights can be summarised as:
- the interests of the State of South Australia;
- the interests of the Calperum Pastoral Lease holder;
- the valid interests of persons to whom valid or validated rights and interests have been granted or recognised by the State of South Australia or the Commonwealth of Australia under statute including under the Mining Act 1971(SA), Petroleum and Geothermal Energy Act 2000 (SA), Opal Mining Act 1995 (SA), Natural Resources Management Act 2004(SA) and Crown Lands Management Act 2009(SA);
- the interests of persons holding licences or permits pursuant to the Fisheries Management Act 2007(SA), or the Fisheries Management Act 1991(Cth), or any other legislative scheme for the control, management and exploitation of the living resources of the Determination Area;
- rights or interests held pursuant to state or commonwealth laws;
- public access to and enjoyment of waterways, beds and banks or foreshores of waterways, beaches, stock-routes, areas that were public places as at 31 December 1993;
- any public right to fish;
- the public right to navigate;
- the rights to access land by an employee or agent or instrumentality of the State or Commonwealth in the performance of his or her statutory or common law duties;
- the rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area and 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).
- the rights, interests and entitlements of ETSA Utilities;
- the rights and interests of all parties under the River Murray and Crown Lands ILUA; and
- the rights and interests of Envestra (SA) Limited as holder of natural gas Pipeline Licence No. 11.
Co-existence with native title rights and interests
The Other Interests co-exist with the native title rights and interests and the determination does not affect the validity or the exercise of those Other Interests. To the extent that any of the Other Interests are inconsistent with the native title rights and interests, the Other Interests prevail but do not extinguish the native title rights and interests which continue to exist in their entirety.
Provisions Relevant to the Native Title Rights
Native title does not exist over
- minerals or petroleum
- natural resevoirs
- geothermal energy
The River Murray and Mallee Aboriginal Corporation is the prescribed body corporate, and is to perform functions required under the Native Title Act 1993 (Cth) and as such has been registered as the native title body corporate. The native title rights and interests are held on trust.
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