Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4)

• Jurisdiction: Australia Federal only
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] FCA 1620
• Court: Federal Court
• Date: 21 December 2021

FEDERAL COURT OF AUSTRALIA

Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 4) [2021] FCA 1620

File number:	SAD 38 of 2013
Judgment of:	WHITE J
Date of judgment:	21 December 2021
Catchwords:	NATIVE TITLE – overlapping applications for the determination of native title over Oodnadatta and the surrounding Oodnadatta Common – claimant groups or sub‑groups had determinations of native title over the areas adjacent to the Overlap Area – acceptance that by reason of their acknowledgement and observance of their respective traditional laws and customs, each claimant possesses native title rights and interests in the respective adjacent areas – whether the Arabana had, by reason of their continued acknowledgment and observance of their traditional laws and customs, continued to have native title rights and interests in the Overlap Area – whether the Walka Wani had at effective sovereignty native title rights and interests in the Overlap Area – consideration of distinction between “ownership” and “use rights” – whether s 47A applied to certain allotments in the township so that extinguishment could be disregarded. ; Held: Arabana application dismissed and Walka Wani claim granted.
Legislation:	Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Federal Court of Australia Act 1976 (Cth) s 37AG Native Title Act 1993 (Cth) ss 13, 23B, 47, 47A, 47B, 67, 223, 225, 238, 251D, 253 Racial Discrimination Act 1975 (Cth) Aboriginal Land Trust Act 1977 (SA) Associations Incorporation Act 1985 (SA)
Cases cited:	AB (decased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 Ah‑Chee v Stuart [2019] FCAFC 165 Ashwin on behalf of the Wutha People v State of Western Australia (No 4) [2019] FCA 308 Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 Badimia People v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 Banjima People v State of Western Australia (No 2) [2013] FCA 868; (2013) 205 ALR 1 Banjima People v State of Western Australia [2015] FCAFC 84; (2015) 231 FCR 456 Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9; (2015) 325 ALR 213 De Rose v State of South Australia [2002] FCA 1342 Dodd v State of South Australia [2012] FCA 519 Drury on behalf of the Nanda People v Western Australia [2020] FCAFC 69; (2020) 276 FCR 203 Erubam Le v State of Queensland [2003] FCAFC 227; (2003) 134 FCR 155 Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 Fortescue Metals Group v Warrie on behalf of the Yindjbarndi People [2019] FCAFC 177; (2019) 273 FCR 350 Gudjala People #2 v Native Title Registrar [2007] FCA 1167 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia [2011] FCA 1387 King on behalf of the Eringa Native Title Claim Group v South Australia [2011] FCA 1386 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 Manado on behalf of the Bindunbur Native Title Claim Group v State of Western Australia [2018] FCAFC 238; (2018) 265 FCR 68 Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422 Moses v Western Australia [2007] FCAFC 78; (2007) 160 FCR 148 Narrier v State of Western Australia [2016] FCA 1519 Northern Territory of Australia v Alyawarr [2005] FCAFC 135; (2005) 145 FCR 442 Pareroultja v Tickner (1993) 42 FCR 32 R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 Risk v Northern Territory of Australia [2006] FCA 404 Rrumburriya Borroloola v Northern Territory [2016] FCA 776 Sampi v Western Australia [2005] FCA 777 Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; (2018) 261 FCR 183 Stuart v State of South Australia (No 3) [2021] FCA 230 Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) (No 2) [2021] FCA 194 Stuart v State of South Australia (Oodnadatta Overlap Proceeding) [2019] FCA 1282 The Commonwealth of Australia v Yarmirr [2001] HCA 56; (2001) 208 CLR 1 The State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 Western Australia v Graham (on behalf of the Ngadju People) [2013] FCAFC 143; (2013) 305 ALR 452 Wyman on behalf of the Bidjara People v Queensland [2014] FCA 528 Wyman v Queensland [2015] FCAFC 108; (2015) 235 FCR 464 Yankunytjatjara/Antakarinja Native Title Claim Group v South Australia [2006] FCA 1142 Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351
Division:	General Division
Registry:	South Australia
National Practice Area:	Native Title
Number of paragraphs:	1053
Date of hearing:	30 September, 1‑3, 8-11, 14-18 and 21-25 October 2019, 19-23 October 2020 and 11 and 12 March 2021
Counsel for the First Applicant:	Mr A Collett with Ms A Sibree
Solicitor for the First Applicant:	Camatta Lempens
Counsel for the Second and Third Applicants:	Ms T Jowett with Mr C Gregory (30 September, and 1-3, 8‑11 and 14‑18 October 2019 Mr V Hughston SC with Ms T Jowett (21‑25 October 2019, 19‑23 October 2020 and 11 and 12 March 2021)
Solicitor for the Second and Third Applicants:	South Australian Native Title Services
Counsel for the First Respondent:	Mr T Golding with Mr W Ambrose (30 September, 1‑3, 8‑11, 14‑18 and 21-25 October 2019 and 19-23 October 2020) Mr W Ambrose with Mr P Tonkin (11 and 12 March 2021)
Solicitor for the First Respondent:	Crown Solicitor’s Office
Counsel for the Respondents:	The remaining Respondents did not appear

Table of Corrections

...