White J
In this case White J recognised the non-exclusive native title rights and interests of the Ngarrindjeri people over approximately 7173 km2 of land and waters south of Adelaide, and in the upper South East of South Australia. The respondent parties included the State of South Australia, fishing licence holders, and local government interests.
The native title application was filed in 1998 and amended in 2016, to reduce the claim area and in particular to exclude seaward waters. In July 2017, the Court made orders by consent to split the native title determination proceedings into two parts – Ngarrindjeri Part A and Ngarrindjeri Part B. The Ngarrindjeri Part B is overlapped by the First Nations of the South East. Ngarrindjeri Part A comprises the remaining area of the Ngarrindjeri Claim.
All parties reached an agreement as to the determination of native title in relation to Part A and sought a consent determination as per s 87A NTA. The applicant and State of South Australia filed joint submissions, which included reports by anthropologists Professor Diane Bell and Dr David Martin.
In accordance with s 223 NTA, the Court held that a determination of native title requires there to exist a recognisable group of society that observes traditional laws and customs. The evidence submitted identified a system of totems called Ngatji, which regulated kinship, a central institution to Ngarrindjeri society. Semi-permanent seasonal camps, a shared Creation story called Ngurunderi, a standard governance structure called Tendi and mutually intelligible dialects were evidenced as distinctive features of the Ngarrindjeri. Furthermore, it was identified that the only means of inclusion into society was by descent, and therefore the sub-groups within the Ngarrindjeri people did not compromise the finding that they constitute a single community or group.
[23]–[24] Professor Bell’s report indicated that the distinctive features of the Ngarrindjeri continued to operate through transmission of beliefs. White J held that the evidence of such in the determination area satisfied the requirements of s 223 NTA.
[27] The evidence submitted determined that the way in which a Ngarrindjeri person connects to their land is their Ngatji, whereby the physical and cultural geography of the determination area is believed to have been laid by the Creation hero, Ngurunderi. The principles were identified as essentially religious or spiritual in character.
Furthermore the parties agreed that the key elements of Ngarrindjeri existed at the time of sovereignty in 1788.
The Court noted the inclination of both it and the NTA to encourage parties to reach an agreement on applications for a determination of native title, and found it appropriate to give effect to the agreement.
[29] The Court was satisfied that the requirements of s 225 NTA had been met. The non-exclusive native title rights and interests recognised include the right to access, camp, hunt, fish and gather resources, and conduct ceremonies and maintain places of importance and areas of significance within the determination area.
[39] The Ngarrindjeri Aboriginal Corporation is the nominated prescribed body corporate for the determination area for the purposes of s 57(2) of the NTA.