Allsop CJ
In this consent determination, the Court recognised the non-exclusive native title rights of the Kokatha People. The determination was made with the consent of the State of South Australian (State), the Commonwealth of Australia and 27 other respondents including the Council of Roxby Downs and BHP Billiton Olympic Dam Corporation.
The area is approximately 30,346 km2 and lies to the north and north-west of Port Augusta between two salt lakes, Lake Torrens to the east and Lake Gairdner to the west.
The majority of the area is covered by pastoral lease, approximately one third is covered by the Woomera Prohibited Area, which has been the site of long range weapons testing, nuclear weapons testing, rocketry and multiple satellite launches. The area also includes the Olympic Dam Mine, which is the site of the world’s largest known uranium deposit and the world’s fourth largest copper deposit. It includes the towns of Roxby Downs, Andamooka, Woomera and Pimba.
Immediately following the making of the proposed Determination, the State, BHP Billiton Olympic Dam Corporation Pty Ltd and the nominated native title holding body will execute the Kokatha Settlement Indigenous Land Use Agreement (ILUA) to:
surrender the Kokatha's native title rights over a number of land parcels
resolve a number of issues between Kokatha and BHP Billiton Olympic Dam Corporation Pty Ltd in relation to Olympic Dam Mine;
resolve issues concerning Opal Mining in the Andamooka Precious Stones Field; and
provide compensation in full and final settlement of the State’s existing compensation liability under the NTA in relation to the Determination Area.
History of case
This Kokatha native title claim is made up of two native title claims:
a Kokatha Uwankara claim filed in 2009; and
a Kokatha Uwankara No.2 claim filed in 2012.
The Adnyamathanha People filed a claim in 2012 that overlapped with a portion of the 2009 Kokatha Uwankara claim. The Federal Court relied on s 67(2) of the Native Title Act 1993 (Cth) (NTA) to split the 2009 Kokatha Uwankara claim in two parts:
Part A - the area not overlapped by the Adnyamathanha claim; and
Part B - the area overlapped by the Adnyamathanha claim.
On 8 August 2014, Part A of the 2009 Kokatha Uwankara claim was combined with the 2012 Kokatha Uwankara claim.
This matter is the hearing of that combined claim. It does not include Part B of the 2009 claim, which overlaps with the Adnyamathanha native title claim.
Consideration
Allsop CJ noted that:
the parties had filed a signed copy of agreed orders with the Court, this satisfied s 66 NTA notice requirements;
the Registrar had given appropriate notice as required by s 87A(3) NTA and there were no objections; and
the requirements in ss 87(2) and 87A NTA were satisfied because the determination was within the Court’s power and it was appropriate to make the orders. In this case, it was clear that the parties had independent and competent legal advice, and there was no suggestion that the agreement was not entered in to freely.
Allsop CJ also noted that the Kokatha are a recognisable group, forming part of the wider Western Desert Society, for the purpose of a native title consent determination.
Rights and interests
The native title rights recognised are limited to personal, domestic or non-commercial communal use. The non-exclusive native title rights and interests in relation to the land are waters are the right to:
access and move about;
live, to camp and, for the purpose of exercising the Native Title Rights and Interests, to erect shelters and other structures;
hunt;
gather and use the natural resources of the Native Title Land such as food, medicinal plants, wild tobacco, timber, resin, and stone;
share and exchange the subsistence and other traditional resources;
use the natural water resources;
cook and light fires;
engage and participate in cultural activities including those relating to births and deaths;
conduct ceremonies and hold meetings;
teach the physical and spiritual attributes of locations and sites;
visit, maintain and protect sites and places of cultural significance;
speak for country and make decisions about the use and enjoyment of the Native Title Land by those Aboriginal persons.
Prescribed Body Corporate
The native title is not to be held in trust, and the Kokatha Aboriginal Corporation is to be the Prescribed Body Corporation for the purposes of s 57(2) NTA.
Of note
Allsop CJ explained that the Kokatha people form part of the wider Western Desert society, which has been recognised by the Federal Court for the purposes of native title. He noted that evidence shows that the Western Desert law allows for other ways to gain rights to the claim area, this includes people born in the claim area, long term occupation, and religious knowledge of the land. His Honour stated that this is still consistent with s 87 and s 87A NTA, because evidence suggests the Kokatha people continue to hold traditional rights and interests over the claim area.