Charlesworth J
Background
In 1997, the applicant lodged an application on behalf of the Wirangu People for a determination of native title under the Native Title Act 1993 (Cth) (NTA). The claim area is situated on the west coast of South Australia and includes parts of the town of Streaky Bay. The respondents to the claim include the state of South Australia, the District Council of Streaky Bay and the Streaky Bay and Districts Golf Club Inc. On 28 February 2020, the state circulated to the applicant and the other respondents a draft native title determination to be made by consent in accordance with s 87A of the NTA. The proposed consent determination identified the claim group as having non-exclusive native title rights and interests in some parts of the golf course.
A determination cannot be made under s 87A of the NTA without the written consent of all of the respondents. On 26 November 2019 the Court ordered all other respondents to identify the parts of the proposed consent determination they would not consent to. In accordance with that order, the Council filed affidavits and submissions asserting that native title in the area comprising the golf course had been extinguished by reason of a lease it had granted the golf club in 1994. The Council later expanded that argument to include extinguishment on the basis of establishment of a public work, namely the golf course.
The Earthworks question
The question before the court was whether the applicant’s native title had been wholly extinguished by major earth works within the meaning of para (a)(iv) of the s 251D definition. In his judgment, Charlesworth J was not satisfied that the construction of any one feature of the golf course referred to in the evidence after 31 October 1975 and before 1 January 1994 constituted a major earthwork when considered separately. Therefore, it was unnecessary to determine whether s 251D of the NTA would operate to deem land to be included in the place where each of those asserted public works was situated. His Honour also did not consider the original establishment of the golf course as a major earthwork when considered as an integrated whole. Despite much of the surface of the land being disturbed by the creation and maintenance of the golf course over many decades, the evidence provided did not establish that there had been major disturbance to the land within the meaning of the NTA, and therefore did not operate to extinguish the applicant’s native title.
The Lease Question
The second question presented to the Court was whether native title was wholly extinguished by virtue of a community purposes lease, or a lease conferring exclusive possession in respect of the land granted or intended to be granted by the District Council of Streaky Bay to the Streaky Bay Golf Club Inc. The parties’ submissions focussed primarily on whether a lease, as defined in s 242 of the NTA, was granted or vested at any time before 23 December 1996. His Honour held that it was unnecessary to determine whether the statutory routes to extinguishment would apply, as no such lease was granted or vested at any time before the specified date, and any backdated lease granted after that date did was not a previous exclusive possession act for the purposes of the NTA, and so did not operate to extinguish the applicant’s native title in relation to any part of the land.
Conclusion
For the above reasons, the Court decided that native title had not been extinguished on these grounds, and a further case management hearing was ordered for February 2021.