Mansfield J
In this decision, Mansfield J made a native title determination by consent in relation to part of the Adnyamathanha No. 1 claim under s 87A of the Native Title Act 1993 (Cth)(NTA).
The list of respondent parties was extensive and included the State of South Australia. Adnyamathanha Traditional Lands Association (Aboriginal Corporation) RNTBC was nominated to be the prescribed body corporate for the determination area.
Consent orders were made under s 87 NTA recognising the native title rights and interests of the Adnyamathanha people in relation to lands and waters to the east of Lake Frome in the vicinity of the Flinders Rangers in South Australia. Ancillary orders made under s 87A NTA were also made concerning an agreement between the Adnyamathanha people and Malyangapa people.
Rights and interests
The non-exclusive native title rights and interests recognised include rights to access and move about the area, to live, camp, conduct cultural activities, maintain and protect sites of cultural significance, hunt, fish and gather and use the natural resources of the area. The rights and interests were limited to personal, domestic and non-commercial communal use.
Mansfield J made ancillary orders under s 87A(5) NTA recognising the Adnyamathanha people had entered into a Memorandum of Understanding with the Malyangapa people under which the Malyangapa would withdraw a native title claim that partially overlapped the Andyamathanha No. 1 claim area, the Adnyamathanha people acknowledged the Malyangapa people have traditional rights and interests in relation to the overlap area and, in their post-determination dealings, the Adnyamathanha people would ensure the participation of Malyangapa representatives on heritage clearance surveys within the overlap area and would share any minerals or petroleum production or other payments equally with the Malyankapa people. A converse situation applied in relation to a native title application of the Malyangapa people.
Native title determinations by consent
Mansfield J considered the factors that the Court needs to consider when satisfying itself that consent orders are appropriate under ss 87 and 87A NTA and:
whether all parties likely to be affected by an order have had independent and competent legal representation;
whether the rights and interests that are to be declared in the determination are recognisable by the law of Australia or the State in which the land is situated;
that all of the requirements of the Act are complied with: Munn for and on behalf of the Gunggari People v Qld (2001) 115 FCR 109 at [29]-[32].
Assessment of evidence
The Court considered the evidence in relation to the connection requirements in s 223 NTA and noted that:
the Adnyamathanha No 1 claim has been the subject of 4 previous determinations over various parts of the original claim area (Stage 1) and 1 over the Adnyamathanha No 2 claim: Adnyamathanha No 1 Native Title Claim Group v The State of South Australia (No 2) [2009] FCA 359; Coulthard v The State of South Australia [2014] FCA 124.
those determinations followed a detailed assessment of material and the State accepted the current Adnyamathanha group as having evolved from the original groups in the area and as continuing to hold native title rights, at [14].
All affected parties had signed the proposed determination to indicate their agreement to it or have removed themselves from the proceedings, at [19].
A consent determination can be made without the necessity of strict proof and direct evidence of each issue as long as inferences can legitimately be made, at [26].
the State's policy is to focus on contemporary expressions of traditional laws and customs and pay less regard to laws and customs that may have ceased and the State can infer that such contemporary expressions are sourced in the earlier laws and customs, at [26].
The Court was satisfied, at [30], that ‘whilst there has been inevitable adaptation and evolution of the laws and customs of that society, there is nothing to suggest the inference should not be made 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.’
Connection to the land
Lastly, Mansfield J noted, at [31], the relevant consideration is not ‘connection’ to the land in the abstract. Rather, it is the content of the traditional laws and customs, the nature and extent of the connection with land required under those laws and customs, and the relationship between the laws and customs and rights or interests in land that needs to be considered.