In this matter, a consent determination of non-exclusive native title rights and interests was made in favour of the Kaurna Peoples, in an application area that covered approximately 7,000 square kilometres and stretched from south of Rapid Bay to approximately Redhill in the north. The eastern boundary of the claim area runs parallel with the crest of the Mt Lofty Ranges and extends north into the Barossa Valley. The western boundary has as its natural marker the coastline of the Gulf St Vincent in what is now known as the State of South Australia as set out in Schedule 3 of the written reasons for judgment. The determination area itself only covers approximately one half of the claim area. The main parties included the applicant, holders of commercial fishing licences, State of South Australia, the Commonwealth, Telstra, SA Power Networks, South Australian Native Title Services; holders of water licences within the claim area, Epic Energy, 27 local councils and other respondents.
[1] A trial in this proceeding had been set down to commence on 3 April 2018. The applicant and the State of South Australia reached an agreement on the terms of a draft consent determination that native title exists over a part of the area originally claimed by the applicant together with a determination that native title does not exist over the balance of the area, save for parts in the north and south that were dismissed.
[3] The consent determination application was supported by joint submissions made on behalf of the applicant and the State of South Australia. There was some opposition to the proposed determination, and Mortimer J referred briefly to the course of the opposition in her Honour’s written reasons for judgment. [4] Mortimer J was ultimately satisfied with the orders sought and in this matter made the orders as requested by consent as between the parties. [6] Pursuant to orders made on 7 March 2018, fourteen respondents sought and were granted leave to withdraw as a party to the proceeding. All remaining respondents indicated their consent to the orders agreed to between the applicant and the State.
[7] The original application was filed in October 2000. For a historical review of the proceedings to 2016 see Mortimer J’s reasons for judgment in Agius v State of South Australia (No 4) [2017] FCA 361. As noted in those reasons, during the course of 16 years there were considerable periods of inactivity, and non-compliance with the Court’s orders.
[19] The joint submissions also recognise that claim group members trace their society back through their parents, grandparents, and great-grandparents, particularly at Point Pearce (Yorke Peninsula), Poonindie (Eyre Peninsula) and Point McLeay (mouth of the River Murray). The Court accepts that the use of the name ‘Kaurna’ need not be proven to be one that can be traced back to sovereignty nor proven to have been used continually since that time. It is not at all uncommon in native title cases for group labels to change over time and to be a matter of controversy.
[19] It is not in dispute that at sovereignty, Aboriginal people lived in the claim area and, from the time of white settlement, became collectively called the ‘Adelaide Tribe’. In the joint submissions, the applicant and the State accept the Kaurna People are the traditional descendants of the ‘Adelaide Tribe’. The joint submissions recognise that the claim group’s identification as ‘Kaurna’ is a more a recent phenomenon – specifically arising during the 1970s.
[21] A determination was sought only in relation to non-exclusive native title rights and interests, and only in relation to a limited number of parcels of land, seventeen parcels to be precise. They are set out in Schedule 3 to the proposed determination.
[22] In relation to those seventeen parcels of land, the native title rights and interests recognised include the right to access and live on the land and waters, to take and use the resources of the land and waters including by fishing, hunting and gathering (excluding those resources referred to in item 1 of Schedule 4 of the orders), the right to conduct funerals and burials and the right to maintain and protect places of importance under traditional laws, customs and practices on the land and waters. [23] The rights are expressed to be for personal, domestic and community use.
[25] A core component of the agreement reached was that part of the area claimed would be dismissed, and that there would be a determination that native title does not exist in any part of the claim area other than the seventeen parcels specified in Schedule 3 to the determination.
[26] The claim group held several information and authorisation meetings to consider whether a consent determination should be pursued and then ultimately, the terms of the consent determination. On 20 December 2017, a meeting of the applicant unanimously instructed its lawyer to continue negotiating a consent determination. At an authorisation meeting on 18 February 2018, the terms of the consent determination and an ILUA were presented and discussed. The meeting resolved, by majority, to settle and finalise the claim by consent and in the form of an ILUA, that Kaurna Yerta Aboriginal Corporation (KYAC) would act as the prescribed body corporate, and that the chair of KYAC was authorised to sign on behalf of the applicant for the purposes of performing any functions under the NTA and the ILUA.
[27] Three objections were raised to the matter being resolved by consent. The first was by a member of the applicant, Ms Georgina Williams. Ms Williams objected to the surrender of certain lands and about the compressed timeframe to achieve the consent determination. Mortimer J granted Ms Williams leave to appear at case management conferences so as to be heard on these issues. Mortimer J ordered that South Australian Native Title Services (SANTS) assist Ms Williams to access and understand the connection material that had been filed as part of the claim and that SANTS file an affidavit so that the court could be satisfied that the solicitor with carriage of the claim could depose to the steps taken to assist Ms Williams. [3] Mortimer J was ultimately satisfied that Ms Williams was provided with the opportunity to understand the nature of the evidence on connection and to appreciate the risks of contested proceedings or a trial as opposed to a consent determination leading to an ILUA. Mortimer J appreciated the great emotion and passion of Ms Williams but did not consider that her objection was sufficient to prevent the consent determination from proceeding.
[33] The Ramindjeri Heritage Association (RHA), a respondent party, also raised an objection to the matter being resolved by consent. The history of Mr Lance Walker, chair of RHA’s involvement in the matter after being joined as party in 2001 is set out in paragraphs [33]- [45] of her Honour’s reasons for judgment. Mr Walker passed away in 2015 and the written notice of objection to the consent determination in this proceeding was provided by Ms Greenshields and Ms Christine Walker on behalf of RHA on the basis that the country south of the Torrens River is Ramindjeri Country. [43] In the early evening of Sunday 18 March 2018, the Court was informed that the Ramindjeri (through the RHA) sought leave to withdraw as a party. Mortimer J was satisfied that the objection of the RHA (and the Ramindjeri people it represents) to the consent determination was also withdrawn.
[46] On 19 March 2018, Mr Michael Hunter Coughlan filed an interlocutory application seeking to be joined as a respondent to the proceeding. In his supporting affidavit, Mr Coughlan states that he is a Peramangk person descended from an ancestor identified as ‘Buffalo’, and a woman known by her tribal group ‘Korolde’. Mr Coughlan claimed that the country of the Peramangk people overlaps with parts of the eastern portion of the Kaurna determination area, including around Mylor, where some of the seventeen parcels of land subject to a positive determination are located. Both the applicant and the State opposed the joinder application. If joined as a party, Mr Coughlan confirmed he would oppose the consent determination and take an active part in any trial that may subsequently occur. [52] Mortimer J dismissed Mr Coughlan’s application to be joined as a respondent to the proceeding for the reasons set out in paragraphs [53] and [54].
[76] Mortimer J considered that the State gave due recognition to the damaging effects of dispossession, removal and family disruption on how claim group members in the position of the Kaurna people can prove their claims. That approach is evident in paragraphs [47], [48] and [51] of the joint submissions:
[76] A consent determination can be made without the necessity of strict proof and direct evidence of each issue as long as inferences can plausibly be made. The parties submit that, in the circumstances of a consent determination, it is appropriate to focus on credible contemporary expressions of traditional laws and customs and pay less regard to any laws and customs that may have ceased. For the purposes of a consent determination, the State is prepared to infer that such contemporary expressions are sourced in the earlier laws and customs, on the basis that it is inherently unlikely that such contemporary expressions are recent inventions.
The State has borne in mind the fact that the original Aboriginal custodians of this particular land were affected in a unique way by the settlement of Adelaide and its surrounds as a capital city and that the Applicant represents a group that has held, and will continue to hold into the future, recognition by the State and by many in the community as representing those original inhabitants and the current traditional owners of the area.
Given this background, the flexible approach encouraged by the NTA and the Court and the shared desire of the State and the Applicant to avoid what could have been an extremely divisive and damaging trial, the State is prepared to accept there being sufficient ongoing connection by traditional laws and customs of those identifying as Kaurna with the determination area. Specifically, the State is prepared to infer that the pre-sovereignty normative society has continued to exist throughout the period since sovereignty. While there has been inevitable adaptation and evolution of the laws and customs of that society, it should be inferred that the society today (as descendants of those placed in the area in the earliest records) acknowledges and observes a body of laws and customs which is substantially the same normative system as that which existed at sovereignty.
[79] A full tenure analysis was not conducted in this matter. The parties acknowledged that the intensive settlement of the Adelaide plains and its surrounds resulted in the early extinguishment of the vast majority of native title in the region. The cost of determining precisely each and every parcel over which native title has not been extinguished was estimated to be in excess of $3 million and to be a process which would take approximately 5 years to complete with the resources likely to be available to the State. As part of the State and the Applicant reaching agreement to settle the entire matter, intense and targeted work was performed to locate parcels within the determination area that are not subject to extinguishing acts which wholly extinguish native title rights and interests. For the purposes of the consent orders, final agreement has been reached by the parties as to the effect on native title of the various tenures granted and acts done in the determination area.
Negative determination: applicable principles and conclusion
[81] A negative determination can be made if the Court is satisfied that ‘there is no native title that can be recognised and thus protected’: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67 (North, Mansfield, Reeves, Jagot and Mortimer JJ) at [66]. In Badimia, the Full Court emphasised the particular care needed before the making of a negative determination, especially in relation to the Court’s satisfaction there are no other potential claimants for the recognition of native title over the claim area. However, there are examples of a negative determination being made (and upheld on appeal) where there were overlapping claims and none of the claimant groups established native title: see Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108.
[82] In Weribone on behalf of the Mandandanji People v State of Queensland [2018] FCA 247, Rares J made a negative determination of native title under s 87 of the Act. There was no positive determination over any part of the claim area in that proceeding. That determination was made shortly before a trial of the claim was due to start, but in circumstances where the State and the applicant had both agreed to a negative determination. [83] At [21], Rares J described some of the circumstances which led his Honour to be satisfied that such a determination was appropriate, including the applicant and the State having the benefit of advice from experienced senior counsel, solicitors and expert anthropologists, before taking the decision. His Honour also referred to the endorsement to that course given by the claim group as a whole. Finally, his Honour referred at [21] to the divergence in the expert evidence to be presented.
[84] Each of those features is present in the Kaurna people’s proceeding. Mortimer J referred earlier to the significant hurdles to be faced by the Kaurna people if this claim were to be subjected to a full trial. In the face of a great deal of evidence having been gathered, the claim group as a whole decided, in February 2018, to endorse the proposed determination, in both its negative and positive parts. The group also decided to accept an ILUA which has been proposed, and which forms a separate part of the agreement between the parties. Mortimer J noted that an ILUA is not a legal precondition to a determination under s 87 or s 87A, but nor are parties precluded from deciding, on a full, free and informed basis, to include one as part of their agreement.
[88] Mortimer J was satisfied that it is unlikely any other claim group exists which could make a case, in another proceeding, for a positive determination in respect of the limited portions in the claim area that have not been subject to acts extinguishing native title. Her Honour accepted that the Court can be satisfied there is no other group which may hold native title rights and interests in the area to be covered by the negative determination. Her Honour was also satisfied that a negative determination over those parts of the determination area except for the seventeen parcels identified in Schedule 3 of the determination, would provide certainty to all those with proprietary interests in the claim area, and will resolve the question of native title claims over the land encompassing the city of Adelaide on a final basis.
[89] Mortimer J was satisfied that it was appropriate to dismiss the remaining parts of the claim area rather than make a negative determination. In the south, there was some evidence to suggest the traditional country of another group or groups may have extended into the southern part of the Kaurna area as claimed. In the north, based on the evidence before the Court, the traditional country of other groups may also extend into areas in the north of the claim area, adjacent to the areas they already claim.
Although Mortimer J noted that it is not part of the Court’s function under s 87 to assess and make findings about the matters set out in s 223 of the NTA, her Honour nevertheless considered that it is the determination and reasons for judgment, which will stand as the permanent record for the claim group of the judicial recognition of their native title rights. Since that was the case, her Honour made comments at [91]-[97] about the Kaurna people and their country, as revealed in the evidence before the Court.
Paragraph [18] of the proposed consent determination is to the effect that the native title is not to be held on trust. [99] The Court determined that the Kaurna Yerta Aboriginal Corporation ICN 4043 is to be the prescribed body corporate for the purpose of s 57 (2) NTA.
The determination represents the first positive determination of native title over any area within the area of an Australian capital city. [2] Whilst the Kaurna claim had a long and difficult history and Mortimer J stated that this was an occasion to focus on the positive outcomes of the parties. Mortimer J concluded by stating at [100] that ‘The Kaurna people and the State are to be congratulated on reaching agreement in this claim. The other respondent parties have, appropriately, accepted the position taken by the State, and they are to be congratulated for that constructive approach and the Court made orders in the form sought by the parties.’