Stuart v State of South Australia (No 3) [2021] FCA 230

Eyre Lake Basin

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Aaron Stuart, Joanne Warren, Peter Watts and Greg Warren (Applicant) and State of South Australia (Respondent)

Judge: Charlesworth J

Determination

Native title exists in parts of the determination area

It consists of non-exclusive native title rights and interests.

Native title holders

Native title is held by the Arabana People.

Non-exclusive native title rights and interests exist over part of the determination area 

These rights and interests exist over the area described in Schedule 3 and include the right to:

• access to live on, camp on, and erect shelters on the determination area;
• hunt and fish on the land and waters;
• gather and use natural resources such as food, medicinal plants, wild tobacco, tiber, resin, ochre and feathers, excluding the resources referred to in Item 1 of Schedule 4;
• conduct ceremonies and hold meetings; and
• maintain and protect sites and places of cultural and religious significance.

Other rights and interests in the determination area include those:

• held under the Mundowdna pastoral lease;
• held under the Witchelina pastoral lease;
• conferred by 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); and
• conferred by the State or of the Commonwealth.

See the attached NNTT Extract for further information about the non-native title rights and interests. 

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title

At the time the determination was made, the Arabana People had not yet nominated a Native Title Body Corporate (RNTBC) to perform the functions required under the Native Title Act 1993 (Cth).

The Court granted a period of six months from the date of judgment to allow an approved prescribed body corporate to be nominated [23].

Full text of the determination is available via the URL link above.

Background

This application for the determination of native title relates to two distinct areas near Lake Eyre, and was divided into two parts [1]. This determination relates to the Part 1 area. The Part 2 area is wholly overlapping the Walka Wani claim and is to be determined separately [4].

This present Part 1 determination area is roughly triangular, south of Marree, near Lake Eyre. This proceeding effectively fills in the small area that was not included in a previous native title determination for the Arabana People (Dodd v State of South Australia [2012] FCA 519) [5]. 

Details of Judgment

The ethnographic evidence places the determination area in Kuyani country at the time of the assertion of British sovereignty [17]. The State accepted that the Arabana, Kuyani, and Dieri people are members of the wider Lakes Group[17]. Also, the Applicant and State jointly submitted that members of the Arabana and Kuyani Peoples participated in each other's responsibilities in relation to the area; they share the same concept of Dreaming Beings, Story Lines, laws and customs [17]. The Applicant's evidence describes the last Kuyani elder giving ceremonial objects to a member of the Arabana People, signifying the traditional handing over of responsibility for the country, and the rights in it, to the Arabana People [18]. The Court was satisfied that the Arabana People are part of the wider Lakes Group and have a connection to the determination area derived by succession from the Kuyani People [20].

Charlesworth J found that the procedural requirements of s 87 of the Native Title Act 1993 (Cth) were met [10]. The evidence provided by the Applicant demonstrated that the Arabana People hold native title rights and interests that were succeeded from the Kuyani People [20]-[25].

Native title exists in parts of the determination area.

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