Mansfield J
This matter relates to the Barngarla People’s native title claim over a large area of land and waters covering the eastern portion of the Eyre Peninsula in South Australia, from north of Port Augusta to the south beyond Port Lincoln.
His Honour separated the question of the existence of native title from the question of the extinguishment of native title, and was satisfied that the Barngarla People’s native title rights and interests to the claim area exist but left the question of extinguishment to a later hearing.
Respondents:
There were 346 respondents in this matter including:
the State of South Australia;
the Commonwealth;
the Australian Maritime Safety Authority;
the South Australian Native Title Service;
the City of Port Lincoln;
the Corporation of the City of Whyalla,
various District Councils;
various primary industry interests, including those of mining and exploration, pastoralists and commercial fishers; and
Aboriginal groups with native title interests in the area.
The claim area abuts the native title lands of:
the Far West Coast people;
the Gawler Rangers people.;
the Kokatha Uwankara People; and
the Adnyamathanha People.
The claim area also abuts, and overlaps slightly with the Nukunu People’s claim area. Mansfield J noted that the parties were negotiating a suitable outcome about the overlap and that they intended this to be reflected in an Indigenous Land Use Agreement (ILUA).
Background
The Barngarla claim was filed in April 1996, over a much greater area of land. The claim area was reduced in October 1999, again in September 2001, and registered in August 2002. Following mediation, eight areas of overlap were identified under two broad main areas:
registered claims by the Kokatha People and the Kuyani People (around Lake Torrens); and
two registered claims by the Adnyamathanha People and the claim by the Nukunu People (around the Flinders Ranges National Park).
The dispute resolution processes for the overlapping areas was complex and involved issues of priority with respect to available budget, a state-wide ILUA process, striking-out of claims, new claims as well as unsuccessful mediation referred to hearings and back to mediation.
Barngarla Claim
The Barngarla People asked the Court to recognise, in the claim area, their right to:
possess, occupy, use and enjoy the area;
make decisions about the use and enjoyment of the area;
access the area;
control the access of others to the area;
use and enjoy resources of the area;
control the use and enjoyment by others of resources of the area;
trade in resources of the area;
receive a portion of any resources taken by others from the area;
maintain and protect places of importance under traditional laws, customs and practices in the area;
maintain, protect and prevent the misuse of cultural knowledge associated with the area; and
conduct burial ceremonies on the area.
The Response
The State submitted that:
the Barngarla People never possessed native title rights or interests in respect to the south and west of Port Lincoln; and
the Barngarla People have not maintained a connection with particular mainland or adjacent sea areas or possessed a right to trade in marine resources and, any laws and customs acknowledged or observed are either:
acknowledged or observed only as a result of a revival following substantial interruption or discontinuity;
acknowledged or observed in a form substantially different from the form in which they were acknowledged and observed at sovereignty; and/or
do not perform a normative or regulative role in contemporary Barngarla relations and at best represent merely observable patterns of behaviour, but not rights or interests in relation to land.
The Commonwealth joined this matter and argued that if the Barngarla People had exclusive rights over any seas at sovereignty, they cannot have exclusive rights as a matter of common law.
The Law
Mansfield J made a determination under s 225 of the Native Title Act 1993 (Cth) (NTA), by reference to the definition of native title and native title rights and interests in s 223(1) NTA.
Mansfield J followed Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 at [83], [87] and [89] and Bodney v Bennell (2008) 167 FCR 84 at [120]-[121], stating, at [69] that s 223(1)(a) NTA would be fulfilled:
only where there is proof that a society acknowledges and observes rules under which rights and interests in land are possessed that have normative content and that find their real origins in the same pre-sovereignty society. The acknowledgement and observance of those normative rules must have continued substantially uninterrupted from the time of sovereignty.
Mansfield J stated, at [71], that the proper interpretation of s 223(1)(b) NTA required five matters to be kept in mind:
…the inquiry required by s 223(1)(b) is distinct from that required by s 223(1)(a), and … “connection is not simply an incident of native title rights and interests ... The required connection is not by the Aboriginal peoples’ rights and interests. It is by their laws and customs.”
…because the laws and customs which provide the requisite connection are traditional laws and customs, the acknowledgement and observance of those laws and customs must have continued substantially uninterrupted and the connection itself must have been substantially maintained since the time of sovereignty.
…the inquiry required by s 223(1)(b) involves two steps:
identification of the content of the traditional laws and customs; and
characterisation of the effect of those laws as constituting a connection of the people with the land.
…to establish connection for the purposes of s 223(1)(b), the connection must involve a continuing internal and external assertion by the claimants of their traditional relationship to the country, as that relationship is defined by its laws and customs. That assertion may be expressed by physical presence on the relevant country, or by other means.
…the inquiry required by s 223(1)(b) can have a “particular topographical focus” within the claim area – that is to say, it may be found that there is no evidence of sufficient connection with a particular part of the claim area, despite there being evidence of sufficient connection in other parts of the claim area.
Findings
Mansfield J considered a great deal of evidence, presented during 22 hearing days from November 2012 to September 2013. This included evidence by members of the Barngarla People as well as expert evidence by anthropologists, archaeologists and linguists.
Mansfield J was satisfied that the Barngarla People were the proper people for the claim area but reduced the sea claim area to the intertidal waters and waters immediately adjacent to the intertidal zone and said, at [730], that he was satisfied that, except for the issues identified in his findings, each of the claimed native title rights prima facie exists.
Mansfield J highlighted three problematic rights in the Barngarla claim, at [731]:
the right to trade in resources of the area;
the right to receive a portion of any resources taken by others from the area; and
the right to maintain, protect and prevent the misuse of cultural knowledge associated with the area.
Mansfield J found the claim group did not possess the rights and interests claimed in 1 and 2 above as no supporting evidence was produced. In considering the right to trade, his Honour found at [521] that there was no real evidence of trade with other Aboriginal groups amongst the Barngarla witnesses.
His considerations included, at [204], that:
There may have been some exchange of some items, having regard to the evidence of the geographic intersection of tribes at the “borders” of their traditional lands, and in the light of the evidence of shared ceremonies. However, I do not think it is correct to take the step of concluding that the Barngarla society at sovereignty had as one of its traditional laws and customs the bartering of items of value to them for other items from other tribal groups.
With respect to right 3, Mansfield J was bound by Western Australia v Ward (2002) 208 CLR 1 and found, at [733], that:
a “right to maintain, protect and prevent the misuse of cultural knowledge” was not a right “in relation to land or waters”, as required by s 223 of the NT Act. I do not think the addition to that formulation of the words “associated with the area” alters the substance of the alleged right.
Mansfield J considered the extent of interests beyond the intertidal zone and adjacent waters, including with respect to the Spencer Gulf islands and noted, at [208], that material does not demonstrate any sophisticated practices of the Barngarla people at settlement relating to the use of the sea beyond areas physically proximate to the low water mark without the use of any seagoing forms of transport.
At [721], Mansfield J found the lack of evidence of the Barngarla people having occupied the Spencer Gulf islands and, although dreaming stories included the islands, the Barngarla people did not have any rights or interests in the Spencer Gulf islands.
His Honour made no orders, but asked at [737] that the parties provide formal terms in a document that reflected his findings, including the extent to which native title rights and interests as claimed are to be recognised.