The court ordered a determination of native title be found over the determination area.
This case concerns a determination of native title for three overlapping claims: Adnyamathanha No 1 Claim (SAD 6001 of 1998), Ngadjuri Claim (SAD 147 of 2010) and Wilyakali No 2 Claim (SAD 417 of 2015). The effect of the native title determination, as agreed to by the parties, is that the three native title groups will be recognised as follows:
A combination of the Adnyamathanha people and the Ngadjuri people will be recognised as the native title holders for the West area of the Determination Area;
A combination of all three peoples will be recognised as the native title holders for the Central area of the Determination Area;
A combination of Adnyamathanha people and the Wilyakali people will be recognised as the native title holders for the East area of the Determination Area
And thus that there is one single society made up of the three groups which holds native title over the area.
S 87 Power of Court if parties reach agreement
White J found that the requirements of ss 87(1)(a)-(c) of the Native Title Act 1993 (Cth) were satisfied. His Honour then turned to the question of appropriateness under ss 87(1) and (2). His Honour adopts the approach taken by the authorities of Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474, Nangkiriny v State of Western Australia (2002) 117 FCR 6, Ward v State of Western Australia [2006] FCA 1848, and Munn v Queensland (2001) 115 FCR 109, in which the Court does not consider underlying evidence, but considers whether ‘the agreement was freely entered into on an informed and rational basis, that the parties were acting in good faith, and that the State or Territory party has taken steps to satisfy that there is a credible basis for the application’ (at [19]). On this basis, the Court was satisfied that it was appropriate to make a consent determination.
Society
White J noted that the present applicants ‘must possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them and, by those laws and customs, have a connection to the land and waters of the determination area’ (at [26]). The present issue was that originally each of the applicant groups put forward their own claim in respect of the claim area, however later the three groups combined to provide anthropological evidence indicating that a single society made of the three groups hold native title over that area. Anthropological evidence was provided to demonstrate that the society which existed at the time of sovereignty comprised of people from the three groups, bound together by mutually observed laws and customs, such as a matrilineal moiety system. His Honour cites the following cases, in which composite communities or groups have been found to comprise a broader society acknowledging traditional laws and customs from which native title rights and interests of members of the composite group have derived; Daniel v Western Australia [2004] FCA 849, (2004) 138 FCR 254; Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2005] FCA 777; Eringa, Eringa (No 2), Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Group Claims [2008] FCA 1370, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Group Claims [2008] FCA 1370; McNamara on behalf of the Gawler Ranges People v State of South Australia [2011] FCA 1471; Budby on behalf of the Barada Barna People v State of Queensland (No 7) [2016] FCA 1271; and Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285.
Rights and interests
The nature and extent of the rights and interests are the non-exclusive rights to access, live, camp, hunt and fish, gather and use natural resources, cook and light fires, use the natural water resources, distribute, trade or exchange the natural resources, conduct ceremonies and hold meetings, engage in cultural activities, carry out and maintain burials, teach, visit, maintain and preserve sites, and be accompanied on the land. These rights and interests are for personal, domestic and non-commercial communal use.
White J found that all aspects of s 225 have been satisfied by the agreement.
A single Registered Native Title Body Corporate was to be established for the combined three groups.