Mansfield J
The Court made orders by consent recognising that the Far West Coast Native Title Claim Group holds traditional indigenous interests in the Far West Coast area of South Australia under s 87 of the Native Title Act 1993 (Cth)(NTA).
The determination area consists of approximately 75,249 km2 in the far south-west of South Australia and includes many sites of significance in coastal country, wooded coastal plain and dry inland salt lake, soak and sandhill country. It includes the towns of Ceduna/Thevenard, Denial Bay, Smoky Bay, Penong, Fowlers Bay and Coorabie.
Over 85% of the determination area now includes land which is dedicated as national park, reserve or wilderness area, including the Nullabor Regional Reserve and Wilderness Protection Area and the Yellabinna Regional Reserve and Wilderness Protection Area. The Determination Area also includes the Yalata Lands, held by the Aboriginal Lands Trust.
Background
The Far West Coast Native Title Claim Group is an amalgamation of five previous, partially overlapping claims, (the Edward/Ted Roberts, the Maralinga Tjarutja, the Mirning, the Wirangu #1 and Yalata native title claims). The native title claim group identify primarily as Mirning, Wirangu and Kokatha, with the Court recognising that, as a result of inter-marriage, many have affiliations with more than one group.
The State of South Australia (State) was joined by 179 other respondents in this matter, including private individuals, corporations and councils.
As the application combined three different language groups, Justice Mansfield specifically considered the concept of ‘society’ under s223 of the NTA and found that language was “not the critical factor in determining native title rights and interests in the area.” (at 46)
Rights and interests
The nature and extent of the non-exclusive native title rights and interests in relation to land and waters are the right to:
access and move about;
live, to camp and erect shelters and other structures;
hunt, fish, gather and use the natural resources of the Native Title Land such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers;
share and exchange the subsistence and other traditional resources;
use the natural water resources;
cook and to light fires for domestic purposes but not for the clearance of vegetation;
engage and participate in cultural activities including those relating to births and deaths;
conduct ceremonies and hold meetings;
teach the physical and spiritual attributes of locations and sites;
visit, maintain and protect sites and places of cultural and religious significance;
be accompanied by others
The Court noted that, immediately following the making of the determination, the State, the Applicant and the nominated native title holding body would execute the Far West Coast Settlement Indigenous Land Use Agreement (ILUA). Under the ILUA the parties agreed that the non-extinguishment principle would apply to land adjacent to the Determination Area, the Far West Coast poeple consented to surrender a number of parcels of land, a process for future acts on native title land and the State's compensation liability under the NTA in the determination area.
Prescribed Body Corporate
The native title is not to be held on trust and the Far West Coast Aboriginal Corporation is to be the prescribed body corporate and perform the functions set out in s 57(3) of the NTA following registration.