| Coulthard v State of South Australia [2015] FCA 1379 (Adnyamathanha No. 1)
Between:
VINCENT COULTHARD, THATHY (GERALDINE) ANDERSON, BEVERLEY PATTERSON, STEWART PATTERSON, GORDON SAMUEL COULTHARD, MARK MCKENZIE, IRENE KEMP, RHONDA GEPP-KENNEDY, EDWARD LANDERS, DAVID MUNGERANNIE, SYLVIA STUART, MICHAEL ANDERSON, ROGER JOHNSON, MARK MCKENZIE (SNR) and ANGELINA STUART (applicants);
and
STATE OF SOUTH AUSTRALIA, DISTRICT COUNCIL OF ORROROO/CARRIETON, THE FLINDERS RANGES COUNCIL, AESTAS PTY LTD, APLANA PTY LTD, AJ & PA MCBRIDE PTY LTD, MARGARET CAMPBELL DOMAN, FREDERICK SPENCER HOWE DOMAN, ELSPETH MARY DOMAN, ANDREW SPENCER DOMAN, CR & S PTY LTD, COMMODORE STATION PTY LTD, RICHARD BURY, DENIS F BEST, THOMAS ALASTAIR DOMAN, JILL LARRITT, IAN C FERGUSON NOMINEES PTY LTD, HGM PASTORAL PTY LTD, FRANCIS CAPOWIE PTY LTD, BRENTON JOHN LUCKRAFT, MOOLOOLOO PROPRIETORS PTY LTD, JAMES RANEMBE MORGAN, MUTOOROO PASTORAL COMPANY PTY LTD, ANNE NEED, GRAHAM ANDREW RAGLESS, QUINYAMBIE PASTORAL CO PTY LTD, ORATANA PTY, OLARY INVESTMENTS PTY LTD, NILPENA PARTNERS, PAULINE ANN RAGLESS, RICHARD WILLIAM RAGLESS, RETEP PTY LTD, PHILLIP LEONARD SEARLE, SOUTH AUSTRALIAN FARMERS FEDERATION, GRISELDA SPRIGG, DOUGLAS P SPRIGG, TEETULPA PASTORAL CO PTY LTD, DAVID JOHN WARWICK, WITCHELINA PTY LTD, WOODLENE PTY LTD, DJ SMITH, PO SMITH, JA SMITH, WARREN FARGHER, JO SMITH, WINNIFRED FARGHER, PA SMITH, CATHERINE DRIVER, JULIE RESCHKE, WILLIAM RESCHKE, DARREL FARGHER, ROY DRIVER, REX FARGHER, UNIMIN AUSTRALIA LIMITED, PERILYA LTD, MAGNESIUM DEVELOPMENTS LIMITED, EQUINOX RESOURCES NL, EPIC ENERGY SOUTH AUSTRALIA PTY LTD, HEATHGATE RESOURCES PTY LTD ACN 011 018 232, ALLIANCE PETROLEUM AUSTRALIA PTY LTD, BASIN OIL PTY LTD, SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC, VAMGAS PTY LTD, YUNTA DISTRICT HALL INC, BLINMAN PROGRESS ASSOC INC, BELTANA SPORT & SOCIAL PROGRESS ASSOC INC, C H KETTLE, RJ KETTLE, ORIGIN ENERGY RESOURCES LTD, BRIDGE OIL DEVELOPMENTS PTY LTD, REEF OIL PTY LTD, SANTOS (BOL) PTY LTD, SANTOS PETROLEUM PTY LTD, DELHI PETROLEUM PTY LTD, SANTOS LTD, URANIUM ONE AUSTRALIA PTY LTD, PRESIDENT PETROLEUM COMPANY (FORMERLY KNOWN AS MERIDIAN RESOURCES PTY LTD ACN 107 376 385), EXCO OPERATIONS (SA) LTD ACN 105 161 564, HAVILAH RESOURCES NL, TASMAN RESOURCES LTD, SYDNEY WILLIAM NICHOLLS, PEPINNINI RESOURCES CURNAMONA PTY LTD, SINOSTEEL URANIUM SA PTY LTD, TELSTRA CORPORATION LIMITED, SANTOS (NARNL COOPER) PTY LTD, SA POWER NETWORKS (FORMERLY KNOWN AS ETSA UTILITIES) and SOUTH AUSTRALIAN NATIVE TITLE SERVICES LTD (respondents).
Judge: Mansflied J
Where made: Adelaide
Determination:
Native title exists in parts of the determination area. It consists of non-exclusive native title rights.
Native title is held by the Adnyamathanha People.
Non-exclusive native title rights and interests in the determination area consist of:
- the right to access and move about the Determination Area;
- the right to live, to camp and to erect shelters on the Determination Area;
- the right to hunt and fish on the Determination Area;
- the right to gather and use the natural resources of the Determination Area such as food, plants, timber, resin, ochre and soil;
- the right to cook and to light fires for cooking and camping purposes on the Determination Area;
- the right to use the natural water resources of the Determination Area;
- the right to distribute, trade or exchange the natural resources of the Determination Area;
- the right to conduct ceremonies and hold meetings on the Determination Area;
- the right to engage and participate in cultural activities on the Determination Area including those relating to births and deaths;
- the right to carry out and maintain burials of deceased native title holders and of their ancestors within the Determination Area;
- the right to teach on the Determination Area the physical and spiritual attributes of locations and sites within the Determination Area;
- the right to visit, maintain and preserve sites and places of cultural or spiritual significance to Native Title Holders within the Determination Area;
- the right to speak for and make decisions in relation to the Determination Area about the use and enjoyment of the Determination Area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders;
- the right to be accompanied on to the Determination 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 Determination Area; or
(iii) people who have rights in relation to the Determination 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 interests in relation to waters are subject to the Natural Resources Management Act 2004 (SA).
General limitations:
- the native title rights and interests described in do not confer possession, occupation, use and enjoyment of the Determination Area on the Native Title Holders to the exclusion of others;
- 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 rights and interests within the Determination Area created by the pastoral leases described in Schedule 4;
2. the interests of the Crown in right of the State of South Australia;
3. in relation to the Strzelecki Regional Reserve:
(a) the rights and interests of the Crown of South Australia pursuant to the National Parks and Wildlife Act 1972 (SA); and
(b) the rights and interests of the public to use and enjoy the Reserve consistent with the National Parks and Wildlife Act 1972 (SA);
4. 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;
5. rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth;
6. 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);
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 PAI 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;
(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.
8. 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 Producers’ Right of Way Agreement dated 26 November 1981;
(d) for the Producers’ 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.
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.
Rights of the Parties:
- the Parties have liberty to apply on 14 days’ notice to a single judge of the Court to establish the precise location and boundaries of any public works and adjacent land and waters or to establish the effect on native title rights and interests of any public works.
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. |
Coulthard v State of South Australia [2015] FCA 1379 - Consent Determination Extract - (