Mansfield J
This consent determination concerns the native title claim of the Dieri people over some 47,000 square kilometres of lands and waters in the north-eastern region of South Australia. The Dieri people, the State of South Australia (‘the State’), and a range of pastoral, mining and other interested parties were involved in the proceedings. By consent, the Court made a determination in favour of the applicants for non-exclusive native title rights and interests.
The principal evidence in this matter consisted of material co-authored by two anthropologists, based on a comprehensive assessment of the determination area, as well as significant fieldwork carried out with contemporary Aboriginal people. The Dieri peoples’ evidence included preservation evidence by claimants and a pastoralist, and various statements, videos and maps from members of the Dieri people that describe geographic boundaries, traditional laws and customs. This material was then assessed by the State and its independent expert.
A Court ordered conference of anthropologists was held and substantial agreement was reached on nearly all the anthropological evidence. After reviewing the materials submitted, the independent expert provided a written opinion stating that a decision by the State to consent to the determination would be justifiable.
The Court considered the evidence in relation to the connection requirements in s223 of the Native Title Act 1993 (Cth) (‘NTA’). The Court emphasised that in consent determinations the focus is on contemporary expressions of traditional laws and customs, and therefore the Court will pay less regard to laws and customs that may have ceased. The Court indicated that consent determinations ‘can be made without the necessity of strict proof and direct evidence of each issue as long as inferences can be legitimately made’.
The Court was satisfied that there had been continuity of the core features of Dieri society and traditional law and custom, transmission of knowledge, and no evidence of a break in continuity. However, the Court was of the view that exclusive native title rights were not consistent with the traditional laws and customs put forward by the Dieri people, particularly in the contemporary setting.
The Court found that non-exclusive native title rights and interests were found to exist over most of the determination area, but not with respect to: areas covered by public works; minerals, petroleum or other geothermal energy resources; and a number of land parcels, including pastoral land, Crown land and other land held under Certificate of Title. In addition, pursuant to the non-extinguishment principle established by the NTA, parts of the determination area remain vested in the Crown under the National Parks and Wildlife Act 1972 (SA).
The Court recognised the extinguishment of native title over those parts of pastoral leases where houses and other exclusive possession-style improvements authorised by pastoral leases had been constructed. The Court did not preclude the possibility of future extinguishment by reason of pastoral improvements, until the law in relation to future improvements is settled.
Rights and interests
The non-exclusive native title rights and interests in relation to the determination area include the following rights: to access and move about the determination area; to hunt and fish on the lands and waters; to gather and use natural resources, including water resources; to live, camp and erect shelters; to cook and light fires for domestic purposes; to engage and participate in cultural activities and ceremonies; and to visit, maintain and protect sites of cultural significance to native title holders.
The Court was satisfied that it was appropriate to make orders under s87 of the NTA considering: the period specified in the notice under the s66 of the NTA had expired; there was an agreement between all parties; and the State was sufficiently satisfied as to the proposed evidence of the Dieri people and had considered the interests of the broader community.