Mansfield J
In this matter, Mansfield J dismissed 3 completely overlapping native title determination applications on behalf of the Kokatha people, the Adnyamathanha people and the Barngarla people over the lands and waters of Lake Torrens in the mid-north of South Australia. The principal respondent was the State of South Australia.
Background
Mansfield J outlined the long histories of the applications, which are also described in part in the Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9 decision. The previous claims were more extensive and dated back to 1998. They involved overlapping claims, negotiations, mediation and previous determinations over adjacent land to Lake Torrens.
The current proceeding began on 18 June 2009 with the lodgment of the Kokatha Uwankara Claim by the Kokatha people over Lake Torrens and an area to its west. The Adnyamathanha people filed their claim over Lake Torrens in November 2012. In April 2013, the Court divided the Kokatha Uwankara Claim into Part A (the west area) and Part B (Lake Torrens). Part A was resolved separately by the consent determination in Kokatha Part A. The determination in Adnyamathanha No 1 recognised the Adnyamathanha people as the holders of native title over areas to the east of Lake Torrens, while the determination in Barngarla No 2 recognised the Barngarla people as the holders of native title in areas south of Lake Torrens. These previous determinations were relevant as all three applicants relied on those findings in establishing their claim for native title in this proceeding.
Numerous negotiations and mediation processes have been engaged in by the parties to resolve the overlapping claims through an ILUA process, a consent determination, or the formulation of a single claim over Lake Torrens without success. Orders were made for all 3 applications to be heard together.
Competing applications
There is some interrelation between the applicant groups. The Kokatha people are members of the wider Western Desert society, while the Adnyamathanha people and Barngarla people are members of the wider Lakes Group society. Furthermore, three of the apical ancestors in the Barngarla application are also named as apical ancestors in the Kokatha application. Each applicant, however, sought a favourable determination to the exclusion of all others. The Adnyamathanha people and Barngarla people also jointly submitted that if either of their individual claims does not succeed in respect of agreed boundaries, they had common rights over the area at sovereignty as members of a larger cultural bloc (the Lakes Society) which was based on and followed like traditions and customs and accommodated each other. The appropriate determination then, would involve a description of both the Adnyamathanha People and the Barngarla People who together are the native title claim group.
The State argued that the three applications should be dismissed because no applicant had established their native title rights under s 223(1)(b) of the Native Title Act 1993 (Cth) (NTA) and the alternative argument of the Adnyamathanha People and the Barngarla People was too uncertain, at [161].
Each claim group satisfied the test laid down in s 223(1) of the NTA. The issue was whether the claim groups' rights include Lake Torrens.
Reasoning
Mansfield J reviewed the substantial ethnographic, historical, archaeological and witness evidence including Dreaming stories and physical use of Lake Torrens presented by the three applicants to determine the existence of a continued connection to the lake as required by s 223(1)(b) of the NTA. His Honour concluded, at [74]:
Each of the claim groups now has contemporary significant and credible spiritual connection to parts of Lake Torrens, but it is not possible to prioritise one set of spiritual beliefs over the other for the purposes of a finding in terms of ss 223 and 225 of the NTA. As Sutton said in the course of his cross-examination, it is the abutment between the Lakes Cultural Bloc and the Western Desert Cultural Bloc that the Court is being requested to determine, and to use his word which, on the evidence I think is appropriate, to “re-imagine” what existed in 1788. The competing or inconsistent spiritual beliefs, which clearly exist, tend to demonstrate also the lack of the continuance of a dominant particular set of spiritual beliefs of one of the three Claim Groups over that of the others for the purposes of s 223(1)(b) of the NTA from sovereignty to contemporary times.
Mansfield J found at [771]-[774] that:
The Kokatha people did not occupy or possess the claim area according to their traditional laws and customs at sovereignty;
The Adnyamathanha (Kuyani) people may have been associated with part of the claim area at the time of sovereignty, but found no sufficient evidence to conclude that there is a continuing and contemporary connection in accordance with their traditional laws and customs;
The Barngarla people may have had a connection to the southern part of the claim area at sovereignty, but the evidence did not show a continuing connection to the present time in accordance with their traditional laws and customs; and
While each of the applicant groups have contemporary spiritual connection to parts of Lake Torrens, Mansfield J declined to prioritise one set of beliefs over the others and could not support any one of the competing claims.
Extinguishment
His Honour noted that Lake Torrens is designated a National Park and considered any native title rights and interests in the Lake surface which were inconsistent with the creation of the National Park and vesting of the Lake in the State. They are only suspended for the period that the Lake remains a national park.