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Starkey v State of South Australia [2014] FCA 924

Category: Agreement
Date: 1 September 2014
Sub Category:Consent Determination (Native Title Act)
Location:Located between Lake Gairdner and Lake Torrens, South Australia, Australia
The determination area is outlined in Schedule 1 of the judgment. It is situation between Lake Gairdner and Lake Torren and also includes Roxby Downs and Olympic Dam. The native title determination covers approximately 33,807 square kilometres of land.
Legal Status: Registered on the National Native Title Register.
Legal Reference: Tribunal file no.: SCD2014/004; Federal court file no.: SAD90/2009
Subject Matter:Native Title
URL: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/924.html?stem=0&synonyms=0&query=title(starkey%20and%20south%20australia%20)
Summary Information:
Starkey v State of South Australia [2014] FCA 924

Between:

ANDREW STARKEY AND JOYLEEN THOMAS (applicant);

and

STATE OF SOUTH AUSTRALIA, COMMONWEALTH OF AUSTRALIA, MUNICIPAL COUNCIL OF ROXBY DOWNS, ADNYAMATHANHA PEOPLE, KENNETH MCKENZIE, MARGARET MCKENZIE, REGINA HAZEL MCKENZIE, HEATHER JOY STUART, MARKEETA JAMAYEL STUART, BHP BILLITON OLYMPIC DAM CORPORATION PTY LTD, GOLDEN CROSS OPERATIONS PTY LTD, HAVILAH RESOURCES NL, KELARAY PTY LTD, MONAX MINING LIMITED, OZ EXPLORATION PTY LTD, OZ MINERALS CARRAPATEENA PTY LTD, OZ MINERALS PROMINENT HILL OPERATIONS PTY LTD, OZM CARRAPATEENA PTY LTD, SALISBURY EXPLORATION PTY LTD ACN 125 935 613, STRAITS EXPLORATION (AUSTRALIA) P/L, TASMAN RESOURCES LTD, BUCKLEBOO NOMINEES PTY LTD, GREENFIELD PASTORAL COMPANY LTD, COLIN GREENFIELD, DOUGLAS MAXWELL GREENFIELD, ROBERT WILLIAM GREENFIELD, HANDBURY ASSET MANAGEMENT PTY LTD, INGLEWOOD PTY LTD, COLLEEN MARY MANNING, PAUL STEPHEN MANNING, NUTT BROS NOMINEES PTY LTD, UNALLA PASTORAL CO PTY LTD, SA POWER NETWORKS, TELSTRA CORPORATION, ANDAMOOKA PROGRESS & OPAL MINERS ASSOCIATION INC, PIMBA PROGRESS ASSOCIATION, GRAEME PATRICK AUSTIN, JANET JOAN AUSTIN, GWENITH MAY BANNERMAN, GRAHAM BLATCHFORD, VI BLATCHFORD, BRIAN WAYNE FRANKE, ROBYN GAYE FRANKE, JUDITH ANN HANCOCK, MARGARET KOROAHA, GWENETH ALEXANDRA PURDUE, CLAIRE DENSIE RIDLEY, REX RIDLEY, VICKI MAREE STUART, WILLIAM ANTHONY WATERS, JULIE GAYE WRIGHT and MICHAEL CRAIG WRIGHT (respondents).

Judge: Allsop CJ

Where made: Andamooka Station

Determination:

Native title exists parts of the determination area. It consists of non-exclusive native title rights.

Native title is held by the Kokatha People.

The determination area

- native title exists in the lands and waters described in Schedule 3 of the determination
- native title has been extinguished in those areas described in Schedule 5 of the determination
- the court also noted that the State, BHP Billiton Olympic Dam Corporation Pty Ltd and the Applicant have agreed to execute an Indigenous Land Use Agreement (the Kokatha Native Title Claim Settlement ILUA) contemporaneously with this Determination the effect of which will be, upon it being registered on the Register of Indigenous Land Use Agreements, that native title is extinguished over those areas described in Schedule 4

Non-exclusive native title rights and interests that exist over the determination area consist of the rights 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 but excluding those resources referred to in item 2 of Schedule 5;
- share and exchange the subsistence and other traditional resources of the Native Title Land;
- use the natural water resources of the Native Title Land;
- cook and to light fires;
- engage and participate in cultural activities including those relating to births and deaths;
- conduct ceremonies and hold meetings;
- teach on the Native Title Land the physical and spiritual attributes of locations and sites;
- visit, maintain and protect sites and places of cultural significance to the Native Title Holders under their traditional laws and customs;
- be accompanied on to the Native Title Land by those people who, though not Native Title Holders, are:
(i) spouses of Native Title Holders; or
(ii) people required by traditional law and custom for the performance of ceremonies or cultural activities on the Native Title Land; or
(iii) people who have rights in relation to the Native Title Land according to the traditional laws and customs acknowledged by the Native Title Holders;
- in relation to Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged and observed by the Native Title Holders, the right to speak for country and make decisions about the use and enjoyment of the Native Title Land by those Aboriginal persons.

General limitations

- the native title rights and interests are for personal, domestic or non-commercial communal use
- the native title rights and interests do not confer possession, occupation, use and enjoyment of the Native Title Land on the Native Title Holders to the exclusion of others
- the native title right to use the natural water resources of the Native Title Land is subject to the Natural Resources Management Act 2004 (SA)

Native title rights and interests do not exist in:

- petroleum as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA);
- a naturally occurring underground accumulation of a regulated substance as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth;
- a natural reservoir, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA), below a depth of 100 metres from the surface of the earth;
- geothermal energy, as defined in s 4 of the Petroleum and Geothermal Energy Act 2000 (SA) the source of which is below a depth of 100 metres from the surface of the earth.

The native title rights and interests are subject to and exercisable in accordance with:

- the traditional laws and customs of the Native Title Holders;
- the laws of the State and Commonwealth, including the common law

Non-native title rights and interests that exist within the determination area:

1. the interests created by the following pastoral leases:
(Lease name - Pastoral Lease No - Crown Lease No.)
Andamooka - PE2333 - Volume 1629 Folio 20
Andamooka Island - PE2333A - Volume 1629 Folio 3
Arcoona - PE2347 - Volume 1291 Folio 3
Beacon Hill - PE2170 - Volume 1205 Folio 3
Billa Kalina - PE2415 - Volume 1323 Folio 10
Bosworth - PE2211 - Volume 1279 Folio 26
Coondambo - PE2349 - Volume 1284 Folio 10
Hesso - PE2374 - Volume 1296 Folio 33
Kootaberra - PE2373 - Volume 1296 Folio 32
Lake Blythe - PE2381 - Volume 1299 Folio 13
Mahanewo - PE2351 - Volume 1292 Folio 43
Mahanewo South - PE2177 - Volume 1213 Folio 44
Mulgaria - PE2431A - Volume 1379 Folio 26
Nonning - PE2328 - Volume 1298 Folio 25
Oakden Hills - PE2377 - Volume 1298 Folio 7
Parakylia - PE2197 - Volume 1603 Folio 23
Parakylia South - PE2197A - Volume 1603 Folio 24
Pernatty - PE2353 - Volume 1330 Folio 26
Purple Downs - PE2480 - Volume 1410 Folio 12
Roxby Downs - PE2338 - Volume 1287 Folio 30
South Gap - PE2523 - Volume 1600 Folio 42
Stuart's Creek - PE2431 - Volume 1378 Folio 16
Wirraminna - PE2348 - Volume 1293 Folio 46
Wirraminna South - PE2155 - Volume 1165 Folio 13
Yadlamalka - PE2277 - Volume 1282 Folio 13
Yalymboo - PE2251 - Volume 1280 Folio 23
Yudnapinna - PE2372 - Volume 1296 Folio 31;

2. the interests of the Crown in right of the State of South Australia;

3. the interests of persons to whom valid or validated rights and interests have been granted or recognised by the Crown in right of the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power including, but not limited to, rights and interests granted or recognised pursuant to the Crown Land Management Act 2009 (SA), Crown Lands Act 1929 (SA), Development Act 1993 (SA), Mining Act 1971 (SA), Petroleum and Geothermal Energy Act 2000 (SA) and Opal Mining Act 1995 (SA), all as amended from time to time;

4. rights or interests held by reason of the force and operation of the laws of the State or of the Commonwealth;

5. the rights to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties where such access would be permitted to private land;

6. the rights and interests of all parties to the Kokatha Native Title Claim Settlement Indigenous Land Use Agreement listed in Schedule 6 arising by reason of that agreement, and the interests of all persons who have rights and interests that will be validated upon Registration of that agreement;

7. the rights and interests of Telstra Corporation Limited (or its corporate successor):
(a) as the owner or operator of telecommunications facilities on the Native Title Land;
(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), and the Telecommunications Act 1991 (Cth), and the Telecommunications Act 1997 (Cth) including rights:
(i) to inspect land;
(ii) to install and operate existing and new telecommunications facilities;
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; and
(iv) for its employees, agents or contractors to access its telecommunications facilities on, and in the vicinity of, the Native Title Land in performance of their duties;
(iii) under any lease, licence, access agreement or easement relating to its telecommunications facilities on the Native Title Land;
(iv) in the Olympic Dam CMTS located on CR 5503/771, pursuant to the dedication of this land as a reserve for telecommunications purposes under section 5 of the Crown Lands Act 1929 (SA) on 30 September 1997 as published in the South Australian Government Gazette on 2 October 1997;

8. the rights and interests of the Commonwealth in the Woomera Prohibited Area, being:
(a) the rights and interests authorised under regulation 34 of the Defence Force Regulations 1952 on 22 May 2007 by the Minister for Defence to enter upon, and the use on behalf of the Commonwealth of, the area of land situated in the State of South Australia and delineated on the plan numbered GP 249/1989 deposited in the General Registry Office at Adelaide, South Australia , for the purpose of carrying out operations for the testing of war material; and
(b) the rights and interests of the Commonwealth in the area, being all that piece of land situate in the State of South Australia and delineated on the plan deposited in the General Registry Office at Adelaide and numbered GP 249/1989, declared as a prohibited area under regulation 35 of the Defence Force Regulations 1952 on 29 June 1989 by the Minister for Defence Science and Personnel (Commonwealth of Australia Gazette No GN 26, 12 July 1989, 1564);

9. the rights, interests and entitlements of SA Power Networks (a partnership of Spark Infrastructure SA (No.1) Pty Ltd, Spark Infrastructure SA (No.2) Pty Ltd, Spark Infrastructure SA (No.3) Pty Ltd, CKI Utilities Development Limited and PAI Utilities Development Limited) and its related and successor entities, including its rights, interests and entitlements:
(a) to exercise its entitlements and discharge its obligations as the owner and/or operator of electricity infrastructure (as defined in the Electricity Act 1996 (SA) (Electricity Act) and telecommunications facilities and infrastructure on the Native Title Land including but not limited to the electricity infrastructure identified in Schedule 7 (Existing Infrastructure);
(b) to exercise its entitlements and discharge its obligations as the holder of a licence under the Electricity Act and/or as an electricity entity under the Electricity Act;
(c) to exercise its entitlements and discharge its obligations as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);
(d) to install new electricity and telecommunications infrastructure on the Native Title Land (New Infrastructure) and modify, maintain and repair Existing Infrastructure;
(e) under easements, leases or licences (whether registered, unregistered, statutory or otherwise) relating to Existing Infrastructure or New Infrastructure on the Native Title Land (Easements);
(f) to provide its employees, agents or contractors with access to Existing Infrastructure, New Infrastructure and the Easements on the Native Title Land; and
(g) to the extent permitted by law, to restrain any person from performing any act, or compel any person to perform any act, for the purposes of ensuring that SA Power Networks complies with its obligations under any law, including, but not limited to, excluding any person from entering an area containing Existing Infrastructure or New Infrastructure for the purposes of maintaining the safety of any person and the security and protection of such infrastructure;

10. The rights and interests of BHP Billiton Olympic Dam Corporation Pty Ltd:
(a) in the Indenture (as amended) and ratified by the Roxby Downs (Indenture Ratification) Act 1982 (SA), and rights, powers, privileges and interests comprised in, conferred under or in accordance with or pursuant to that Indenture and the Roxby Downs (Indenture Ratification) Act 1982 (SA);
(b) in the Variation Deed amending the Indenture and ratified by the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011 (SA), and rights, powers, privileges and interests comprised in, conferred under or in accordance with or pursuant to that Variation Deed amending the Indenture and the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011 (SA);
(c) pursuant to the Kokatha Native Title Claim Settlement ILUA entered into between the State of South Australia , BHP Billiton Olympic Dam Corporation Pty Ltd and the Kokatha Aboriginal Corporation, as amended from time to time;
(d) as holder of extractive minerals leases EML5357 and EML5552, granted pursuant to the Mining Act 1971 (SA) and as holder of any renewal granted pursuant to the Mining Act 1971 (SA);
(e) as holder of exploration licences EL4356, EL4762, EL4763, EL4805, EL4896, EL4897, EL4902, EL4904, EL4916 and EL4917, granted pursuant to the Mining Act 1971 (SA) and as holder of any renewal or any subsequent exploration licences granted pursuant to the Mining Act 1971 (SA);
(f) as holder of retention lease RL76, granted pursuant to the Mining Act 1971 (SA) and as holder of any renewal granted pursuant to the Mining Act 1971 (SA);
(g) as owner of the following easements:
(i) CT4401/485;
(ii) CT4401/643; and
(iii) CT5698/239;
(h) as holder of licences to occupy OL17944 and OL18250, granted and continued or renewed or replaced pursuant to the Crown Lands Act 1929 (SA) and the Crown Land Management Act 2009 (SA) for town development purposes;
(i) for its employees, agents or contractors to enter the Determination Area to access BHP Billiton Olympic Dam Corporation Pty Ltd's rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties;

11. The rights and interests of the Municipal Council of Roxby Downs and the Administrator of the Municipal Council of Roxby Downs (Council):
(a) in the Indenture (as amended) and ratified by the Roxby Downs (Indenture Ratification) Act 1982 (SA), and rights, powers, privileges and interests comprised in, conferred under or in accordance with or pursuant to that Indenture and the Roxby Downs (Indenture Ratification) Act 1982 (SA);
(b) in the Variation Deed amending the Indenture and ratified by the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011 (SA), and rights, powers, privileges and interests comprised in, conferred under or in accordance with or pursuant to that Variation Deed amending the Indenture and the Roxby Downs (Indenture Ratification) (Amendment of Indenture) Amendment Act 2011 (SA);
(c) pursuant to the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA);
(d) as an entity exercising statutory powers in respect of land and waters within the Determination Area;
(e) in relation to dedicated land placed under its care, control and management pursuant to the Crown Lands Act 1929 (SA) and the Crown Land Management Act 2009 (SA); and
(f) for the Council's employees, agents or contractors to enter the Determination Area to access the Council's rights and interests and to do all things necessary to exercise those rights and interests in the vicinity of the Determination Area in performance of their duties;

12. The rights and interests of OZ Minerals Carrapateena Pty Ltd ACN 149 626 255 (OZC):
(a) as a holder of Retention Lease 127; and
(b) for OZC, its employees, agents and contractors to enter the Determination Area to access OZC's rights and interests and to do all things necessary to exercise those rights and interests in the Determination Area in performance of their duties;

13. The rights and interests of OZM Carrapateena Pty Ltd ACN 007 756 443 (OZM):
(a) as a holder of Retention Lease 127; and
(b) for OZM, its employees, agents and contractors to enter the Determination Area to access OZM's rights and interests and to do all things necessary to exercise those rights and interests in the Determination Area in performance of their duties;

14. The rights and interests of OZ Minerals Prominent Hill Operations Pty Ltd ACN 091 546 691 (OZPHO):
(a) as the holder of:
(i) Miscellaneous Purposes Licence 121; and
(ii) Miscellaneous Purposes Licence 122;
(b) for OZPHO, its employees, agents and contractors to enter the Determination Area to access OZPHO's rights and interests and to do all things necessary to exercise those rights and interests in the Determination Area in performance of their duties;

15. The rights and interests of Andamooka Progress and Opal Miners Association in relation to dedicated land placed under its care, control and management pursuant to the Crown Lands Act 1929 (SA) and the Crown Lands Management Act 2009 (SA);

16. The rights and interests of the Outback Communities Authority:
(a) under the Outback Communities (Administration and Management) Act 2009 (SA);
(b) as an entity exercising statutory powers in respect of land and waters within the Determination Area; and
(c) in relation to dedicated land placed under its care, control and management pursuant to the Crown Lands Act 1929 (SA) or the Crown Land Management Act 2009 (SA);

The relationship between the native title rights and interests and the non-native title rights and interests is that:

- to the extent that any of the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the Other Interests to the extent of the inconsistency during the currency of the other interests; and otherwise,
- the existence and exercise of the native title rights and interests do not prevent the doing of any activity required or permitted to be done by or under the other interests, and the other interests, and the doing of any activity required or permitted to be done by or under the other interests, prevail over the Native Title Rights and Interests and any exercise of the native title rights and interests, but, subject to any application of the NT Act or the Native Title (South Australia) Act 1994 (SA), do not extinguish them;
- the native title rights and interests are not able to be extinguished contrary to the NT Act.

Provisions relevant to the native title rights:

- the Kokatha Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate
- native title is not to be held in trust for the Kokatha People
Detailed Information:
Background

The native title application was first made on 18 June 2009, and has since been amended to reflect the final decision of the Kokatha People about their claim. This Kokatha native title claim is made up of two native title claims:
1. a Kokatha Uwankara claim filed in 2009; and
2. a Kokatha Uwankara No.2 claim filed in 2012.

It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Kokatha People as the holders of native title rights and interests over their country.

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.

Details of Judgement

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Kokatha People in relation to part of the land and waters covered by the Kokatha claim. The signed document was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).

The court was satisfied that a determination of native title was within the power of the court.

The successful native title claim has provided the Kokatha People with formal recognition of approximately 33,807 square kilometres of land.

Related Entries

Organisation
  • Commonwealth of Australia - Respondent
  • Municipal Council of Roxby Downs - Respondent
  • BHP Billiton Olympic Dam Corporation Pty Ltd - Respondent
  • BHP Billiton
  • Golden Cross Operations Pty Ltd - Respondent
  • OZ Minerals Prominent Hill Operations Pty Ltd - Respondent
  • Tasman Resources Ltd - Respondent
  • Telstra Corporation Limited - Respondent
  • Havilah Resources NL - Respondent
  • Kelaray Pty Ltd - Respondent
  • Monax Mining Limited - Respondent
  • OZ Exploration Pty Ltd - Respondent
  • OZ Minerals Carrapateena Pty Ltd - Respondent
  • OZ Minerals Prominent Hill Operations Pty Ltd - Respondent
  • Salisbury Exploration Pty Ltd - Respondent
  • Straits Resources Ltd
  • Straits Exploration Pty Ltd - Respondent
  • Buckleboo Nominees Pty Ltd - Respondent
  • Handbury Asset Management Pty Ltd - Respondent
  • Greenfield Pastoral Company Ltd - Respondent
  • Nutt Bros Pty Ltd - Respondent
  • Unalla Pastoral Co Pty Ltd - Respondent
  • SA Power Networks - Respondent
  • Andamooka Progress & Opal Miners Association Inc - Respondent
  • Pimba Progress Association Inc - Respondent
  • People
  • Andrew Starkey and Joyleen Thomas - Native Title Applicants
  • Adnyamathanha People - Respondent

  • Documents

    Map
    Starkey v State of South Australia [2014] FCA 924 - Schedule 2 Maps of Determination Area - ( PDF)
    Starkey v State of South Australia [2014] FCA 924 - Schedule 2 Maps of the Determination are varied by Court Order 4 December 2014 - ( PDF)
    Starkey v State of South Australia [2014] FCA 924 - Consent Determination Extract - ( PDF | PDF)
    Starkey v State of South Australia [2014] FCA 924 - Schedule 3 Land and Waters within the Determination Area where Native Title exists - ( PDF)
    Starkey v State of South Australia [2014] FCA 924 - Schedule 4 Areas where Native Title is extinguished pursuant to the Settlement ILUA - ( PDF)
    Starkey v State of South Australia [2014] FCA 924 - Schedule 5 Land and waters within the Determination Area where native title has been extinguished - ( PDF)
    Starkey v State of South Australia [2014] FCA 924 - Schedule 7 Existing interests of SA Power Networks - ( PDF)
    Starkey v State of South Australia [2014] FCA 924 - Schedule 8 Full list of Parties - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Incorporated Association | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title (Australia) | Native Title Applicants | Native Title Determination (Australia) | Native Title Registers

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