|Coulthard v State of South Australia  FCA 1380 (Adnyamathanha People Native Title Claim No. 3)
RUSSELL COULTHARD and ALWYN HAMILTON McKENZIE (applicants);
STATE OF SOUTH AUSTRALIA and SOUTH AUSTRALIAN NATIVE TITLE SERVICES LTD (respondents).
Judge: Mansfield J
Where made: Adelaide
Native title exists in parts of the determination area. It consists of exclusive native title rights in relation to land and non-exclusive native title rights in relation to waters.
Native title is held by the Adnyamathanha People.
Exclusive native title rights and interests in relation to land within the determination area consist of the rights to:
- possession, occupation, use and enjoyment of the area to the exclusion of all others.
Non-exclusive native title rights and interests in relation to water in the determination area consist of the rights to:
- access and move about;
- live, camp and to erect shelters;
- hunt and fish;
- gather and use the natural resources of the area such as food, plants, timber, resin, ochre and soil;
- cook and to light fires for cooking and camping purposes;
- use the natural water resources;
- distribute, trade or exchange the natural resources;
- conduct ceremonies and hold meetings on the area;
- engage and participate in cultural activities on the area including those relating to births and deaths;
- carry out and maintain burials of deceased native title holders and of their ancestors;
- teach on the area the physical and spiritual attributes of locations and sites within the area;
- visit, maintain and preserve sites and places of cultural or spiritual significance to Native Title Holders within the area;
- speak for and make decisions in relation to the area about the use and enjoyment of the area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders;
- be accompanied on to the area by those people who, though not Native Title Holders, are:
(i) spouses of Native Title Holders; or
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the area; or
(iii) people who have rights in relation to the area according to the traditional laws and customs acknowledged by the Native Title Holders.
The native title rights and interests are subject to and exercisable in accordance with:
- the traditional laws and customs of the Native Title Holders;
- the valid laws of the State and Commonwealth, including the common law.
For the avoidance of doubt, the native title rights and interestsin relation to waters are subject to the Natural Resources Management Act 2004 (SA).
The native title rights and interests are for personal, domestic and non-commercial communal use.
There are no native title rights in or in relation to:
- Minerals, as defined in s 6 of the Mining Act 1971 (SA); or
- Petroleum, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA); or
- a naturally occurring underground accumulation of a regulated substance as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth; or
- a natural reservoir, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth;
- geothermal energy, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA) the source of which is below a depth of 100 metres from the surface of the earth.
Non-native title rights and interests that exist within the determination area:
1. the interests of the Crown in right of the State of South Australia;
2. the interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power;
3. rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth;
4. the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties (in accordance with any valid legislation);
5. the interests of Viliwarinha Yura Aboriginal Corporation and the Indigenous Land Corporation in the tenures listed at Schedule 1;
6. the rights and interests of the Producers as defined in the Cooper Basin (Ratification) Act 1975 (SA):
(a) as holders of Pipeline Licence No.2 (PL2) granted to the Producers on 26 November 1981 under the Petroleum Act 1940 (SA) and renewed on 3 May 2003 under the Petroleum Act 2000 (SA) and continuing in force by the operation of clause 2 of the Schedule to the Petroleum Act 2000 (SA);
(b) (created pursuant to the Stoney Point (Liquids Project) Ratification Act 1981 (SA);
(c) granted to the Producers pursuant to the former PASA (now NGASA) and the Producersí Right of Way Agreement dated 26 November 1981;
(d) for the Producersí employees, agents or contractors to enter the Determination Area to access the Producers' rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties.
7. the rights, interests and entitlements of SA Power Networks (a partnership of Spark Infrastructure SA (No.1) Pty Ltd, Spark Infrastructure SA (No.2) Pty Ltd, Spark Infrastructure SA (No.3) Pty Ltd, CKI Utilities Development Limited and PAl Utilities Development Limited) and its related and successor entities, including its rights, interests and entitlements:
(a) to exercise its entitlements and discharge its obligations as the owner and/or operator of electricity infrastructure (as defined in the Electricity Act 1996 (SA)) (Electricity Act) and telecommunications facilities and infrastructure on the Determination Area including but not limited to the electricity infrastructure identified in Schedule 4 (Existing Infrastructure);
(b) to exercise its entitlements and discharge its obligations as the holder of a licence under the Electricity Act and/or as an electricity entity under the Electricity Act;
(c) to exercise its entitlements and discharge its obligations as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);
(d) to install new electricity and telecommunications infrastructure on the Determination Area (New Infrastructure) and modify, maintain and repair Existing Infrastructure;
(e) under easements, leases or licences (whether registered, unregistered, statutory or otherwise) relating to Existing Infrastructure or New Infrastructure on the Determination Area (Easements);
(f) to provide its employees, agents or contractors with access to Existing Infrastructure, New Infrastructure and the Easements on the Determination Area; and
(g) to the extent permitted by law, to restrain any person from performing any act, or compel any person to perform any act, for the purposes of ensuring that SA Power Networks complies with its obligations under any law, including, but not limited to, excluding any person from entering an area containing Existing Infrastructure or New Infrastructure for the purposes of maintaining the safety of any person and the security and protection of such infrastructure.
The relationship between the native title rights and interests and the non-native title rights and interests is that:
- the other rights and interests co-exist with the native title rights and interests;
- in the event of inconsistency, the other rights and interests prevail over the native title rights and interests and any exercise of the native title rights and interests, but do not extinguish them;
- the existence of the native title rights and interests does not prevent the doing of any activity required or permitted to be done by, in accordance with or under the other rights and interests.
Provisions relevant to the Native Title rights:
- the Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate;
- native title is not to be held in trust for the Adnyamathanha People.|