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King on behalf of the Eringa Native Title Claim Group v State of South Australia  FCA 1386
|Binomial Name:||Federal Court of Australia|
|Date:||13 December 2011|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||South Australia, Australia|
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|The determination area covers approximately 14,740 square kilometres in central northern South Australia about 140 kilometres north-west of Oodnadatta.|
|Legal Status:||Registered on the National Native Title Tribunal Register of Consent Determinations|
|Legal Reference:||Eringa: Tribunal file no.:SC96/3; Federal Court no.: SAD6010/1998; Eringa No. 3: Tribunal file no.: SC10/4 Federal Court No.: SAD189/2010.|
|Subject Matter:||Access | Native Title | Native Title - Extinguishment | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests|
SAD 6010 of 1998
Edie King, Ruth McKenzie, Emily Churchill, Howard Doolan, Dean Ah Chee and Marilyn Hull on behalf of the Eringa Native Title Claim Group (ERINGA APPLICANT)
Hughie Tjami and Keith Minungka on behald of the Eringa No 3 Native Title Claim Group (ERINGA NO 3 APPLICANT) and
State of South Australia and Ors (RESPONDENTS)
Judge: Keane CJ
Where made: Bloods Creek
Native title exists in parts of the determination area. It consists of non-exclusive native title rights.
Native title is held by the Lower Southern Arrernte and Luritja/Yankunytjatjara persons who have a traditional connection to the Determination Area.
The non-exclusive native title rights and interests that exist over the Determination Area include:
- the right of access;
- the right to hunt, fish and gather on the land and waters of the area;
- the right to take and use natural resources of the area and to share the resources of the area ;
- the right to use the natural water resources of the area;
- the right to live, to camp and erect shelters on the Determination Area;
- the right to cook and light fires on the area for domestic purposes;
- the right to engage and participate in cultural activities on the Determination Area including those relating to births and deaths;
- the right to conduct ceremonies and hold meetings on the determination area;
- the right to teach on the area the physical and spiritual attributes of the area;
- the right to visit, maintain and protect sites and places of cultural and religious significance under traditional laws and customs and protect those places and areas from physical harm;
- the right to be accompanied on the determination area by those people who, though not Native Title holders are spouses of Native Title holders or those required by traditional law and custom for the performance of ceremonies or cultural activities or people who have rights in relation to the determination area according to the traditional laws and customs acknowledged by the Native Title Holders; and
- in relation to Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by the Native Title Holders, the right to speak for country and make decisions about the use and enjoyment of the determination area by those Aboriginal persons.
Non-native title rights and interests that exist within the determination area
- the interests of the holders of the following pastoral leases: Pastoral Lease No. 2495(Tieyon); Pastoral Lease No. 2495A (Crown Point);
Pastoral Lease No. 2460 (Hamilton (Eringa)); Pastoral Lease No. 2440 (Stevenson); Pastoral Lease No. 2428 (Mt Sarah); Pastoral Lease No 2528 (Macumba); Pastoral Lease No. 2408 (Allandale);
- the interests of the Crown in right of the State of South Australia;
- the interests of persons to whom valid or validated rights and interests have been granted or recognised by the State of South Australia or the Commonwealth of Australia including, rights and interests granted or recognised pursuant to the Mining Act 1971 (SA), Petroleum and Geothermal Energy Act 2000 (SA) and Opal Mining Act 1995;
- the rights to access land by an employee or agent of the State, Commonwealth or other statutory authority as required in the performance of his or her duties;
- the rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area and rights to inspect land, install, manage, replace telecommunication facilities created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) the Telecommunications Act 1997 (Cth) and under any leases, licences, access agreements or easements relating to its telecommunications facilities in the Determination Area.
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title but the native title rights will continiue to exist in their entirety.
Native title rights and interests do not exist in the determination area over any valid construction such as a house, shed or other building or airstrip or any dam or other stock watering point constructed prior to the date of this consent determination.
Provisions Relevant to the Native Title Rights
Irrwanyere Aboriginal Corporation RNTBC as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as agent for the native title holders. The native title is not held in trust.
|Details of Judgement:|
The parties to the determination reached an agreement as to the terms of the determination of native title rights and interests to be made in relation to the determination area. The signed agreement was then filed with the Federal Court seeking the making of consent orders for a determination in relation to all the land and waters of the Eringa #1 Application apart from any which are within the Wankangurru/Yarluyandi Application area and all the land and waters the subject of the Eringa #3 Application.
The court considered that it was appropriate to grant the consent orders in consideration of the circumstances of the agreement making process.
The Eringa Native Title Determination Application (No. SAD 6010 of 1998) (Eringa #1) was lodged in 1996 with the National Native Title Tribunal and the Eringa No. 3 Native Title Determination Application (No. SAD 189 of 2010) (Eringa #3) was filed in 2010.
A previous determination in 2008 (Eringa, Eringa No 2, Wangkangurru/Yarluyandi and Irrwanyere Mt Dare Native Title Claim Groups v The State of South Australia  FCA 1370) which concerned an area of each of the Eringa #1, Eringa #2 and Wangkangurru/Yarluyandi Claim areas, recognised native title rights and interests in the area.
This determination covers approximately 14,740 square kilometres in central northern South Australia centred approximately 140 kilometres north-east of Oodnadatta. In conjuction with King on behalf of the Eringa Native Title Claim Group and the Eringa No 2 Native Title Claim Group v State of South Australia  FCA 1387 the determinations recognise non-exclusive native title rights and interests in an area of approximately 20,000 square kilometres for the Eringa and the Wangkangurru/Yarluyandi claim groups (SANTS, 2011).
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