|Native title is held by those Aboriginal people who, under the relevant traditional laws and customs of the Arabana people, self-identify as Arabana and who are recognised as being Arabana by other Arabana people based on:
- Filiation, including by adoption, from an Arabana parent or grandparent; or
- Long term co-residence with Arabana people on Arabana country;
and who satisfy one or more of the following criteria:
- Being raised in Arabana country and being bound by its system of law and custom;
- Living and behaving appropriately with Arabana people in accordance with Arabana laws and customs;
- Having knowledge of Arabana country and its stories and taking appropriate responsibility, under Arabana custom and law, for that knowledge;
- Having knowledge of Arabana society and the relationships of people within it and seeking to maintain proper relationships amongst Arabana people;
- Having knowledge of Arabana language;
- Displaying an active interest and engagement in Arabana affairs;
Non-exclusive native title rights over the determination area have been recognised.
These rights enable the Arbana people to use and enjoy the land and waters of the Determination Area in accordance with their traditional laws and customs. This includes the following rights:
- to access and move about the Determination Area;
- to live, to camp and, for the purpose of exercising their native title rights and interests, to erect shelters and other structures on the Determination Area;
- to hunt and fish;
- to gather and use the natural resources of the Determination Area such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers, but excluding those resources which are specifically excluded, referred to below;
- to share and exchange the subsistence and other traditional resources;
- to use the natural water resources of the Determination Area;
- to cook on the Determination Area and to light fires for domestic purposes but not for the clearance of vegetation;
- to engage and participate in cultural activities including those relating to births and deaths;
- to conduct ceremonies and hold meetings;
- to teach the physical and spiritual attributes of locations and sites within the Determination Area;
- to visit, maintain and protect sites and places of cultural and religious significance to Native Title Holders under their traditional laws and customs on the Determination Area; and
- to be accompanied on to the Determination Area by those people who, though not Native Title Holders, are:
(a)spouses of native title holders; or
(b)people required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area; or
(c)people who have rights in relation to the
Determination Area according to the traditional laws and customs acknowledged by the native title holders.
The rights and interests are only for personal, domestic and communal use and do not include commercial use.
The rights and interests described above do not confer possession, occupation, use and enjoyment of the determination area to the exclusion of others.
The rights and interests must be exercised in accordance with both traditional laws and customs of the Arbana People and State and Commonwealth law.
Native title has been extinguished in:
- Any house, shed or other building or airstrip or any dam or other stock watering point constructed prior to the date of this determination, which are pursuant to the 25 pastoral leases that also have interests in the Determination Area (see Paragraph 16(a) of the Determination).
Native title may further be extinguished, according to law, in other limited parts of the Determination Area if new pastoral improvements, of the kind referred to above, are constructed after the date of this Determination.
- Areas covered by public works constructed, established or situated prior to 23 December 1996. Public works established or situated after 23 December 1996 have had such effect as has resulted from Part 2, Division 3, of the Native Title Act or as agreed pursuant to the Arabana Native Title Claim Settlement ILUA as described in Schedule 6.
Native title rights and interests do not exist in:
- a naturally occurring underground accumulation of a regulated substance
- a natural reservoir, below a depth of 100 metres from the surface of the earth;
- geothermal energy, the source of which is below a depth of 100 metres from the surface of the earth. (See Paragraph 12 of Determination for further information).
Non-native title rights and interests that exist within the determination area are detailed in Paragraph 16 of the Determination. They include:
- interests created by 25 pastoral leases;
- interests of the Crown in right of the State of South Australia;
- interests pursuant to the National Parks and Wildlife Act 1971;
- rights and interests granted or recognised 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) and Opal Mining Act 1995 (SA);
- rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth;
- state or commonwealth agents as required for the performance of their statutory duties;
- the rights and interests of those parties to the Indigenous Land Use Agreements listed in Schedule 6 arising by reason of those agreements;
- the rights and interests of Telstra Corporation Limited in their role as owner and operator of telecommunication facilities in the area;
- the rights and interests of the Commonwealth in the Woomera Prohibited Area;
- the rights and interests of BHP Billiton Olympic Dam Corporation Pty Ltd;
- the rights and interests of Termite Resources N.L. as lessee and operator of Mining Lease 6303;
- the rights and interests of Oz Minerals Prominent Hill Operations Pty Ltd as the holder of four ‘Miscellaneous Purpose’ Licences; and
- the rights, interests and entitlements of ETSA Utilities to exercise its entitlements and discharge its obligations as the owner and/or operator of electricity infrastructure and telecommunications facilities and infrastructure in the Determination Area.
Pursuant to the non-extinguishment principle established by s238 of the NTA, native title is suppressed over the parts of Lake Eyre National Park and Lake Torrens National Park that fall within the determination area.
To the extent of any inconsistency between the native title rights and other interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the Other Interests.
While the exercise of the Other Interests prevail over the native title rights and interests, those Other Intersts do not extinguish native title rights and interests (subject to any application of section 24IB or section 24JA of the Native Title Act).
The State and the applicants agreed to execute an Indigenous land use agreement (‘ILUA’) at the same time as the consent determination to surrender native title over land within the town of Marree where native title had not been previously extinguished.
The ILUA also grants long-term tenure to the applicants over Finniss Springs, a fomer pastoral station of particular significance to them.
Provisions Relevant to the Native Title Rights
The Arabana Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is not held in trust.
This Consent Determination concerned the Native Title Determination Application No. SAD 6025 of 1998 filed by the applicants on 16 January 1998.
After extensive mediation both between the applicants and respondents as well as with other overlapping claim groups (including the Adnyamathanha, Antakirinja Matu-Yankunytjatjara, Kokatha and Barngarla groups), the applicants and respondents have reached an agreement as to the terms of native title.
According to the NNTT, two ILUAs have been negotiated as part of the mediation process. These are
'an Indigenous Land Use Agreement for a long term lease be granted to the Arabana Aboriginal Corporation over Finniss Springs. Funding has been allocated to enable important restoration and conservation works at the site.'
'a National Parks Indigenous Land Use Agreement and Co-management Agreement which provide for the rights of the Arabana People recognised today to be exercised in a way that is consistent with and enhances the management of the Parks in the region. As National Parks are under the State's reserve system, this agreement provides for the input of the Arabana People into the management of the Parks.' (Vanessie, NNTT Media Release)
Syd Stangways, a Native Title holder present at the hearing said “I am glad because this day the government is giving back to us our country… This country is protected by and is subject to Aboriginal Law. Arabana Law. Initiated men and senior Arabana lawmen…duly danced the corrobories for this country. They kept alive the culture and the stories and they have faithfully kept alive the Law and on their passing, have handed it all to us” (South Australia Native Title Services, Media Release).|