Finn J
This matter involved an application lodged by the Arabana people (‘the applicants’) in 1998 over land in the central/far north of South Australia spanning between Marree in the southeast and Oodnadatta in the northwest. The applicants, the State of South Australia (‘the State’), and a range of pastoral, mining and other interested parties were party to the proceedings. By consent, the Court made a determination in favour of the applicants for non-exclusive native title rights and interests over approximately 68,823 square kilometres.
Indigenous Land Use Agreement (ILUA)
In this matter, the State and the applicants agreed to execute an ILUA at the same time as the consent determination to surrender native title over those parcels within the town of Marree where native title had not been previously extinguished. The majority of the determination area is covered by pastoral lease, including Anna Creek Station, the largest cattle station in the world, and Finniss Springs, a former pastoral station of particular significance to the applicants. Pursuant to the ILUA, the State agreed to grant long-term tenure over Finniss Springs to the applicants. The ILUA also provided for a process under which the State could undertake future acts in the determination area. In addition, the ILUA provided a final settlement of the State’s compensation liability pursuant to the Native Title Act 1993 (Cth) (‘NTA’).
Evidence
Anthropologists engaged on behalf of the applicants prepared an expert report that addressed the connection requirements in s 223 of the NTA. Fieldwork in the southern half of the claim area, which both the applicants and State officers participated in, helped to demonstrate the applicants’ contemporary connection to Country. This approach had not previously been adopted in South Australia.
The State conducted a thorough review of ethno-historical literature for the claim area, as well as historical and genealogical research. The expert material provided by the applicants, including video footage from the joint fieldwork, was considered by external Counsel on behalf of the State. Counsel then provided a written opinion stating that based on the evidence a consent determination was justifiable.
His Honour stated that more recently the Court has been prepared to rely upon the State’s protocol or procedure by which it determines whether native title (as defined in s 223) has been established. The evidence suggested that there remains a distinct social group which identifies as ‘Arabana’ and which observes normative rules about succession to membership of the group. The Court was prepared to accept, on the opinion of experts, that members of the contemporary claim group are the descendants or successors of native title holders for the claim area at sovereignty.
The evidence indicated that there had clearly been some transformation in the characteristics of the Arabana society since sovereignty. The traditional laws and customs concerning mechanisms of succession, the system of kinship and marriage, and the system of land holding had transformed. However, the Court accepted that these changes were founded in and consistent with the classical system, and that the native title rights and interests recognised were consistent with traditional rights and interests.
Rights and interests
This consent determination means that the applicants have non-exclusive rights and interests in relation to the determination area to: access and move about the determination area; hunt and fish on the lands and waters; gather and use natural resources, including water resources; share and exchange the subsistence and other traditional resources; live, camp and erect shelters; cook and light fires for domestic purposes; engage and participate in cultural activities and ceremonies; and visit, maintain and protect sites of cultural significance to native title holders.
However, native title rights and interests were extinguished with respect to: houses, fixtures and other improvements constructed on pastoral leases prior to the date of determination; areas covered by public works; minerals, petroleum or other geothermal energy resources; a number of allotments in the locality of the Marree township, adjacent and suburban Marree, and William Creek. Pursuant to the non-extinguishment principle established by s 238 of the NTA, native title is suppressed over the parts of Lake Eyre National Park and Lake Torrens National Park that fall within the determination area.
Decision
Section 87 of the NTA empowers the Court to make a consent determination of native determination if certain procedural conditions have been satisfied. The Court was satisfied that the period of notice under s 66 had elapsed, it was an order within its power, and the requirements of s 225 had been met. Accordingly, the Court made the determination as agreed by the parties and ordered that the Arabana Aboriginal Corporation is the prescribed body corporate for the purposes of s 57(2) of the NTA.