Charlesworth J
In this matter, Charlesworth J recognised, by way of consent, the non-exclusive native title rights and interests of the Dieri people to an area covering about 2115km2 on the eastern shores of Lake Eyre in South Australia. The respondent parties included: the State of South Australia, BHP Billiton Olympic Dam Corporation Pty Ltd and the Australian Wildlife Conservancy. Other interests in the area include pastoral leases holders and those of the Crown and the public in relation to Kati Thanda - Lake Eyre National Park.
This is the third determination made in favour of the Dieri people. Its eastern boundary adjoins a large area already subject to a native title determination in favour of the Dieri people declared at Maree Station on 1 May 2012 Lander v State of South Australia [2012] FCA 427 (Dieri No. 1). In February 2014, a second native title determination was made in favour of the Dieri people in respect of an area adjoining the southern boundary of the Dieri No. 1 determination area in Lander v State of South Australia [2014] FCA 125 (Dieri No.2). The land subject to the Dieri No.2 determination area includes part of Wilpoorinna Station in the west but stops at Yerila Creek in the east. The first of the Dieri claims was commenced more than 20 years ago.
Charlesworth J stated that:
Although this is the third determination made in favour of the Dieri people, the boundaries between the land forming the subject of each determination area are immaterial as far as the traditional laws and customs of the Dieri people are concerned…Now viewed together, the three determination areas reflect the very large area of land with which the Dieri people have a connection in accordance with the traditional laws they acknowledge and the traditional customs they observe. For the purposes of the Act, the connection has persisted since the British Crown asserted sovereignty in 1788, although it does, of course, predate that year by a span of time as ancient as the Dieri people themselves. (at [7]).
[7] – [9] Charlesworth J observed that pursuant to s 87 of the Native Title Act 1993 (Cth) (NTA) the role of the Court is to give effect to the parties’ agreement and ‘avoids the necessity for the Court to determine the claim in a litigious contest’. Her Honour then outlined the authorities in relation to the requirements of s 87 of the NTA. Section 87 enables the Court to make a determination of native title with the consent of the parties without holding a hearing’ (at [11]). ‘The section contemplates that the Court may make a determination of native title in the absence of a comprehensive evidentiary case sufficient to establish all of the facts supporting the determination’. The focus of the section is upon the making of the agreement and especially upon the role of the State party in scrutinising the claim carefully (at [16].)
Charlesworth J further observed [at 19]: ‘In satisfying itself that there is a credible basis for a native title determination, the State party is not required to conduct a comprehensive and inflexible inquiry in substitution for a trial. It may rely upon significantly less material that would be necessary to justify a judicial determination of the issues: Lovett on behalf of the Gunditjara People v State of Victoria [2007] FCA 474 at [38].’
[20] The detailed joint submissions of the State of South Australia and the Dieri People were based upon the State’s policy document entitled Consent Determinations in South Australia: A Guide to Preparing Native Title Reports.
[26] The majority of the evidence relied upon by the Dieri people had already been supplied and favourably assessed by the State for the purposes of the consent determinations in Dieri No. 1 and Dieri No. 2 (at [35]). The evidence included two reports prepared in 2002 by expert anthropologists Drs Rod Lucas and Deane Fergie and by way of affidavits from members of the claim group (at [26]). In Dieri No.1 and Dieri No.2 the Court accepted that the Dieri people are an identified society united by traditional law and custom. The claimant group for the Dieri No. 3 area is thesame as that for the earlier determinations and has already been recognised as a society that satisfies the requirements of s 223(1) of the NTA.
[29]-[30] Evidence provided to the State in respect of the present claim made reference to the ‘Thirrari people’, who were recorded in the proposed determination area in the early ethnography. The Dieri people claimed that the Thirrari (or Tirari) were the original inhabitants of the area but when they died out, the Dieri people assumed the rights and responsibilities of caring for Tirari country. The parties agreed that ‘the people who identified as Dieri and those who once identified as Tirari shared common ancestry, language and laws and customs to such an extent that the inference can readily be made that the Tirari were part of the Dieri society which acknowledges and observes a body of laws and customs which is substantially the same normative system as that which existed at sovereignty’ (at [30]-emphasis added in original).
Charlesworth J observed that: [32] ‘The Court may act on the assurance of the parties that the material supports the inference expressed in the joint submissions and Her Honour concluded (at [38]) that the proposed orders fulfilled the requirements of s 225 of the Act.
[39] Together ss 55 and 56 of the Act require the Court, when making a native title determination (or as soon as practicable thereafter) to determine whether the native title is to be held on trust and if so by whom. Paragraph 13 of the proposed orders is to the effect that the native title recognised in the determination is not to be held in trust. Charlesworth J further ordered that: the Dieri Aboriginal Corporation RNTBC (ICN 3890) is to be the prescribed body corporate in respect of the determination and it has given its written consent to be the prescribed body corporate pursuant to the Act and the Native Title Regulations (Prescribed bodies Corporate) Regulations 1999 (Cth).