This matter concerned an amendment to the determination of native title made in Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia (No 2) [2016] FCA 724. Earlier, Mansfield J had made findings concerning matters bearing on the existence of native title in the area, other than the issues of tenure and extinguishment: Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9. Following that decision, the parties reached agreement as to the terms a determination, and the determination made on 23 June 2016 in favour of the Barngarla People in relation to a large area on the Eyre Peninsula in South Australia gave effect to that agreement.
Whilst the issues of extinguishment had for the most part been resolved by the parties consensually, the remaining issues were to be resolved via the Barngarla Settlement ILUA. Order 2 of the orders made on 23 June 2016 provided for the determination to take effect upon the Barngarla Settlement ILUA being registered on the Register of Indigenous Land Use Agreements within 12 months. [6] However the finalisation of the Barngarla Settlement ILUA was delayed while the parties considered the implications for compensation as a result of Griffiths v Northern Territory (No 3) [2016] FCA 900, the appeal from that decision to the Full Court of the Federal Court Northern Territory v Griffiths [2017] FCAFC 106, and the subsequent applications for special leave to appeal to the High Court of Australia (which were granted on 16 February 2018).
As the Barngarla Settlement ILUA was not finalised within the 12 month period contemplated by Mansfield J in his orders, the Court listed the matter for further directions as contemplated by Order 3. However, by the consent of the Applicant and the State, the Court vacated that hearing so as to give the parties further time in which to finalise and execute the Barngarla Settlement ILUA. The ILUA has now been finalised on the basis that issues of compensation will be deferred until after the determination has come into effect.
The Applicant and the State of South Australia have, since 23 June 2016, entered into the Barngarla Determination ILUA, which:
contains the agreement of the Applicant and the State that the vesting of Adjacent land and Subjacent land in the Minister under s 15(1)(a) of the Harbors and Navigation Act 1993 (SA) is a valid act to which the non-extinguishment principle applies. The effect of registration of the Barngarla Determination ILUA is that, pursuant to s 24EBA of the Native Title Act 1993 (Cth) and s 32B of the Native Title (South Australia) Act 1994 (SA), the validity of the vesting will be confirmed, and any extinguishing effect of the vesting will be changed so that the non-extinguishment principle will apply to the vesting of Adjacent land and Subjacent land which is within the Determination Area; and
addresses parcels which, in the course of negotiating the tenure schedules, 2.were agreed by the parties to be included into an Indigenous Land Use Agreement.
[9] The executed Barngarla Settlement ILUA has been provided to the Native Title Registrar. The only matter remaining was the interlocutory application by the applicant to amend the determination made on 23 June 2016. [11] The Court’s power to vary the determination by amendment is found in s 13(1)(b) of the NTA. [20] White J found that it was appropriate to make the orders for amendment of the determination and the particulars are set out in paragraph [25] of his Honour’s reasons for judgment.