Stuart v State of South Australia (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 17 March 2021
• Neutral Citation: [2021] FCA 230
• Court: Federal Court
• Date: 17 March 2021

FEDERAL COURT OF AUSTRALIA

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

File number:	SAD 38 of 2013
Judgment of:	CHARLESWORTH J
Date of judgment:	17 March 2021
Catchwords:	NATIVE TITLE – determination of native title by consent pursuant to s 87A of the Native Title Act 1993 (Cth)
Legislation:	Native Title Act 1993 (Cth) ss 24IB, 24JA, 55, 57, 66, 67, 87A, 94A, 223, 225, 251D ; Crown Land Management Act 2009 (SA) s 70 Crown Lands Act 1929 (SA) s 5 Mining Act 1971 (SA) s 6 Natural Resources Management Act 2004 (SA) Opal Mining Act 1995 (SA) Petroleum and Geothermal Energy Act 2000 (SA) s 4
Cases cited:	Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359 Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 Dodd v State of South Australia [2012] FCA 519 Lander v State of South Australia [2012] FCA 427 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Nelson v Northern Territory (2010) 190 FCR 344 Risk v Northern Territory of Australia [2006] FCA 404 Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 Sumner v State of South Australia (Ngarrindjeri Native Title Claim Part A) [2017] FCA 1514 Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Division:	General Division
Registry:	South Australia
National Practice Area:	Native Title
Number of paragraphs:	27
Date of last submissions:	17 February 2021
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Mr S Kenny
Solicitor for the Applicant:	Camatta Lempens
Counsel for the Respondent:	Mr P Tonkin
Solicitor for the Respondent:	Crown Solicitor’s Office

ORDERS

		SAD 38 of 2013
BETWEEN:	AARON STUART, JOANNE WARREN, PETER WATTS AND GREG WARREN (SNR) Applicant
AND:	STATE OF SOUTH AUSTRALIA Respondent

order made by:	CHARLESWORTH J
DATE OF ORDER:	17 MARCH 2021

PREAMBLE

A The Applicant first lodged Native Title Determination Application No SAD 38 of 2013 (the Application) with the Federal Court on 1 March 2013 in relation to two separate areas of land in northern South Australia. Part 1 of the Application is now the subject of a proposed determination of native title.

B The Applicant and the State of South Australia have reached an agreement as to the terms of a determination of native title to be made in relation to Part 1 of the land covered by the Application. They have filed with this Court pursuant to section 87A of the Native Title Act 1993 (Cth) (the Native Title Act) an agreement in writing to seek the making of consent orders for a determination.

C The Parties acknowledge that the effect of the making of the determination will be that the members of the native title claim group, in accordance with the traditional laws acknowledged and the traditional customs observed by them, will be recognised as the native title holders for the Determination Area as defined by Paragraph 2 of this Order.

D The Parties have requested that the Court determine the proceedings without a trial.

Being satisfied that a determination in the terms sought by the Parties would be within the power of the Court and it appearing to the Court appropriate to do so and by the consent of the Parties:

THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT:

INTERPRETATION & DECLARATION

1. In this determination, including its schedules:

(a) unless the contrary intention appears, the words and expressions used have the same meaning as they are given in Part 15 of the Native Title Act;

(b) “Native Title Land” means the land and waters referred to in paragraph 3 of these orders; and

(c) in the event of an inconsistency between a description of an area in a schedule and the depiction of that area on the map in Schedule 2, the written description shall prevail.

DETERMINATION AREA

2. Schedule 1 describes the external boundaries of the determination area (Determination Area).

AREAS WITHIN DETERMINATION AREA WHERE NATIVE TITLE EXISTS (NATIVE TITLE LAND)

3. Subject to items 1, 2, 3 and 4 of Schedule 4, native title exists in the land and waters described in Schedule 3.

AREAS WITHIN DETERMINATION AREA WHERE NATIVE TITLE DOES NOT EXIST

4. Pursuant to s 225 of the Native Title Act, native title does not exist in relation to all of the land and waters comprised in those areas described in Schedule 4.

NATIVE TITLE HOLDERS

5. Under the relevant traditional laws and customs of the Arabana people the native title holders comprise those living Aboriginal people who both self-identify as Arabana and who are recognised as being Arabana by other Arabana people based on:

(a) Filiation, including by adoption, from an Arabana parent or grandparent; or

(b) Long term co-residence with Arabana people on Arabana country;

and who satisfy one or more of the following criteria:

(i) Being raised in Arabana country and being bound by its system of law and custom;

(ii) Living and behaving appropriately with Arabana people in accordance with Arabana laws and customs;

(iii) Having knowledge of Arabana country and its stories and taking appropriate responsibility, under Arabana custom and law, for that knowledge;

(iv) Having knowledge of Arabana society and the relationships of people within it and seeking to maintain proper relationships amongst Arabana people;

(v) Having knowledge of Arabana language;

(vi) Displaying an active interest and engagement in Arabana affairs;

RIGHTS AND INTERESTS

6. Subject to Paragraphs 7, 8 and 9, the nature and extent of the native title rights and interests of the Arabana people in relation to the Native Title Land are non-exclusive rights to use and enjoy in accordance with their traditional laws and customs the land and waters of the Native Title Land, being:

(a) the right to access and move about the Native Title Land;

(b) the right to live, to camp and, for the purpose of exercising their native title rights and interests, to erect shelters and other structures on the Native Title Land;

(c) the right to hunt and fish on the land and waters of the Native Title Land;

(d) the right to gather and use the natural resources of the Native Title Land such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers, but excluding those resources referred to in Item 1 of Schedule 4;

(e) the right to share and exchange the subsistence and other traditional resources of the Native Title Land;

(f) the right to use the natural water resources of the Native Title Land;

(g) the right to cook on the Native Title Land and to light fires for domestic purposes but not for the clearance of vegetation;

(h) the right to engage and participate in cultural activities on the Native Title Land including those relating to births and deaths;

(i) the right to conduct ceremonies and hold meetings on the Native Title Land;

(j) the right to teach on the Native Title Land the physical and spiritual attributes of locations and sites within the Native Title Land;

(k) the...