Gepp-Kennedy on behalf of the Dieri People v State of South Australia [2017] FCA 1156

The area covers about 2,115 km sq, on the eastern shores of Lake Eyre, and includes the western portion of Kati Thanda-Lake Eyre National Park.

Gepp-Kennedy on behalf of the Dieri People v State of South Australia [2017] FCA 1156

Between:

Rhonda Gepp-Kennedy, Irene Kemp, Edward Lander, Dane Mungerannie and Sylvia Stuart (APPLICANTS) and the State of South Australia, BHP Billiton Olympic Dam Corporation Pty Ltd., and the Australian Wildlife Conservancy (RESPONDENTS)

Judge: Charlesworth J

Where made: South Australia

Determination:

Native Title exists in the entire of the determination area. The native title interests are non-exclusive rights to use and enjoy the land in accordance with Dieri traditional law and customs.

Native Title is held by the Aboriginal people who, under the traditional laws and customs of the Dieri People, identify as Dieri, are recognised by other native title holders as holding native title rights and interests, and are the descendants of certain apical ancestors:

• Ruby Merrick and Tim Maltalinha (Kulpadakuni)
• Kuriputhanha (known as 'Queen Annie')
  
• Mary Dixon (born at Killalpaninna)
  
• Bertha
• Walter Kennedy (husband of Selma, known as Thelma nee Merrick)
  
• Florrie (wife of Martin Merrick)
  
• Clara Stewart (nee Murray)
  
• The man Panngipania (born at Lake Hope) and woman Kulibani (born at Kalamarina)

The native title rights and interests that exist over land and waters in the determination area include:

• the right to access, hunt, fish, gather, cook, live, camp, erect shelters, light fires (domestic purposes), engage in cultural activities (births and funerals), conduct ceremonies, hold meetings, teach and use natural resources on the land.
• the right to visit, maintain and protect sites and places of cultural and religious significance
• the right of spouses, performers of ceremonies, and cultural activities to be accompanied onto the land by a native titleholder.

These rights do not include the clearance of vegetation or commercial use of the land and waters.

Non-native title rights and interests that exist within the determination area can be summarised as:

• interests created in the Kalamurina pastoral lease (PE002412) and the Kallakoopah pastoral lease (PE002534)
• the rights and interests of the Crown pursuant to the National Parks and Wildlife Act 1972 (SA), and any other Crown interests in the determination area
• the rights and interests of the public to use and enjoy the Park consistent with the National Parks and Wildlife Act 1972 (SA)
• the interests of persons who have been granted rights by the Crown or Commonwealth of Australia under statute or for the purpose of exercising executive power, including: rights granted under the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Mining Act 1971 (SA), Petroleum Act 1940 (SA), Petroleum and Geothermal Energy Act 2000 (SA), and Opal Mining Act 1995 (SA)
• rights or interests held for the force and operation of laws of South Australia or the Commonwealth
• rights of employees and agents of South Australia, the Commonwealth or another statutory authority to access the land to perform their statutory and common law duties. 
• the rights and interests of BHP Billiton Olympic Dam Corporation Pty Ltd and their employees, to do all things necessary to exercise their rights and interests in the determination area, as holder of a special water licence in the Indenture of the Roxby Downs (Indenture Ratification) Act 1982 (SA)

The exercise of non-native title rights and interests will prevail to the extent of the inconsistency over the native title rights in the determination area.

Native title has been extinguished in the determination area:

• over public roads (Crowns Land Act  1929 (SA); Crown Land Management Act 2009 (SA))
• in minerals (Mining Act 1971(SA)), petroleum, underground regulated substances, natural reservoirs and geothermal energy (Petroleum and Geothermal Energy Act 2000 (SA)).
• in areas covered by public works.

For full details on rights, interests, and extinguishment see schedule 1 below under documents.

The Dieri Aboriginal Registered Native Title Body Corporate ('RNTBC'), is to perform functions required under s 57(2) of the Native Title Act 1993 (Cth) and to act as agent for the native title holders.

Access to the full text of the determination and its schedules are available via the URL link provided.

Background:

This application is for the determination of native title under the Native Title Act 1993 (Cth) on behalf of the Dieri People. The Dieri Peoples native title over the land was first recognised in 2012 in Lander v State of South Australia [2012] FCA 472 ('Dieri No 1'). A successful second claim by the Dieri People in Lander v State of South Australia [2014] FCA 125 ('Dieri No 2') saw their native title expand over further territory, adjoining the southern boundary of the Dieri No 1 determination area with Cooper Creek, Murnpeowie Station, and part of Wilpoorinna Station. The eastern boundary of the determination area in this claim ('Dieri No 3') adjoins the native title determination found in Dieri No 1. The area covered by the present claim was not included in Dieri No 1 because at the time it fell within an area claimed by the Arabana people (Dodd v State of South Australia [2012] FCA 519). The Arabana people have since amended their claim to exclude the area [3].

The making of this determination concludes a series of claims made on behalf of the Dieri People. The orders declare and recognise that native title exists, and always has existed, in accordance with the Dieri peoples traditional law and customs. The boundaries between the land forming the subject of each determination are immaterial and can now be viewed together as a large area over which the Dieri People have a connection, acknowledge and observe traditional customs [7].

Details of Judgment:
Through mediation, an agreement was reached for a determination to provide recognition of the native title rights and interests held by the Dieri People. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth). The court was satisfied that a determination of native title was within the power of the court.

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