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Turner v State of South Australia [2011] FCA 1312 (18 November 2011)

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 18 November 2011
Sub Category:Consent Determination (Native Title Act)
Location:Barmera, Riverland Area. , South Australia , Australia
The Determination Area comprises of an area running west and south from the South Australian border with Victoria approximately where the River Murray first enters South Australia. It runs westerly about 150 km to Morgan on the River Murray, and runs south along the border for about a further 150 km and then roughly westerly more or less along the course of the River Murray to Morgan. The claim area includes the Carcuma Conservation Park and extensive areas of land north of the Murray River between the South Australian border and more extensively, south of the Murray River commonly described as the Mallee Region.
Legal Status: Registered on the National Native Title Register
Legal Reference: Tribunal file no.: SC98/3 Federal Court no.: SAD6026/1998
Alternative Names:
  • First Peoples of the River Murray & Mallee Region
  • Subject Matter:Access | Fishing | Native Title | Recognition of Native Title or Traditional Ownership | Recognition of Traditional Rights and Interests
    URL: http://www.austlii.edu.au/au/cases/cth/FCA/2011/1312.html
    Summary Information:
    Between: Dorothy Turner, Mark Angus, Jean Agius, Denise Varcoe, Jim Abdullah, Loretta Smith, George Tripp, Gladys E Sumner and Glenda Rigney (APPLICANT) and

    State of South Australia, Neil Johansen, Wendy Faye Bell, Brenton Paul Bell, Rowland John Beech, Ian Charles Baxter, Barmera District War Memorial Community Centre, Phillipa Mary Austin, Trevor Paul Arnold, Ian Leslie Armstrong, Rodney Norman Stoeckel, South Australia Recreational Fishing Advisory Council Inc, Evelyn Myrtle English, Edward Reginald English, Cornel Craciun, Alexandra Craciun, Maria del Pilar Esteban, Glenda May Clements, Jose Antonio Esteban, Errol Matschoss Motors Pty Ltd, Robert Jan Cornelsen, TG Arnold & Son Pty Ltd, Steven Peter Hudson, Stephen Michael Hogg, Catherine McGill Hewett, Bruce William Hewett, Jung Bahadur Singh Grewal, Keryn Lee Gorman, Trevor Clyde Manuel, Errol Leith Matschoss, Gregory Ronald Micke, Arnold Malcolm Nicolai, Jeanette Margaret O'Leary, Leo John O'Leary, Lynton Murray Scott, Shell Company of Australia Ltd, Carole Anne Stafford, Jayne van der Biezen, Oscar Toneguzzo, Colleen Patricia Thompson, Graham Charles George Stafford, Tony van der Biezen, Jenny Vonic, Leslee Wallace, Maureen Joan Watson, Colin Herbert Wegner, Meredith Mary Wegner, Kris Andre Werner, Suzanne Mary Whetsone, Timothy John Whetstone, South Australian Field & Game Association Inc, South Australian Apiarists Association Inc, Royal Australasian Ornithologists Union, Electranet Pty Ltd, Jacque Zagotsis, Con Zagotsis, Glen Frederick Woolridge, William Roy Wilden, Mid Murray Council, District Council of Renmark Paringa, District Council of Loxton Waikerie, Berri Barmera Council, Commonwealth of Australia, Mitolo Holdings Pty Ltd, John Murray Lunn, Envestra Ltd, Anthony Lever, Berri Irrigation Trust, Josephine Lorna Armstrong, Sietse Venema, Colin Terrence Wesley Venables, Steiner Holdings Pty Ltd, Ian Ross Clements, Gail Rosemary Campain, Cobdogla Irrigation Trust, Anthony Michael English, Michael Richard Kassebaum, Debbie Elizabeth Milburn, Raelene Gloria Leathers, Joanne Keightley, Debra L Scott, St John Ambulance Australia SA Inc, ETSA Utilities, Salwa Valetti, Telstra Corporation Ltd, Director of National Parks, Waikerie Irrigation Trust, Damien John Wilksch, Garry Ian Warrick, South Australian Native Title Services Ltd, Wildcatch Fisheries SA Inc (RESPONDENTS)

    Judge: Mansfield J
    Where made: Barmera, South Australia

    Determination: Native title exists in part of the determination area. It consists of non-exclusive native title rights.

    Native title is held by the First Peoples of the River Murray and the Mallee Region.

    Non-exclusive native title rights and interests that exist over land in the determination area include:

    - the right of access;
    - the right to hunt and fish;
    - the right to gather and use the natural resources such as food, medicinal plants, wild tobacco, timber, resin, ochre and feathers;
    - the right to share and exchange the subsistence and other traditional resources;
    - the right to take the natural water resources of the Determination Area for domestic use;
    - the right to camp and erect temporary shelters;
    - the right to cook and to light fires for domestic purposes but not for the clearance of vegetation;
    - the right to engage and participate in cultural activities including those relating to births and deaths;
    - the right to conduct ceremonies and hold meetings on the Determination Area;
    - the right to teach on country the physical and spiritual attributes of locations and sites within the Determination Area;
    - the right to visit, maintain and protect sites and places of cultural and religious significance;
    - the right to be accompanied on to the Determination Area by non-native title holders who are spouses or are required by traditional law and custom for the performance of ceremonies or cultural activities on the Determination Area or people who have rights in relation to the Determination Area according to the traditional laws and customs acknowledged by the native title holders.

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

    These rights can be summarised as:
    - the interests of the State of South Australia;
    - the interests of the Calperum Pastoral Lease holder;
    - the valid 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 under statute including under the Mining Act 1971(SA), Petroleum and Geothermal Energy Act 2000 (SA), Opal Mining Act 1995 (SA), Natural Resources Management Act 2004(SA) and Crown Lands Management Act 2009(SA);
    - the interests of persons holding licences or permits pursuant to the Fisheries Management Act 2007(SA), or the Fisheries Management Act 1991(Cth), or any other legislative scheme for the control, management and exploitation of the living resources of the Determination Area;
    - rights or interests held pursuant to state or commonwealth laws;
    - public access to and enjoyment of waterways, beds and banks or foreshores of waterways, beaches, stock-routes, areas that were public places as at 31 December 1993;
    - any public right to fish;
    - the public right to navigate;
    - the rights to access land by an employee or agent or instrumentality of the State or Commonwealth in the performance of his or her statutory or common law duties;
    - the rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the Determination Area and 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) and the Telecommunications Act 1997 (Cth).
    - the rights, interests and entitlements of ETSA Utilities;
    - the rights and interests of all parties under the River Murray and Crown Lands ILUA; and
    - the rights and interests of Envestra (SA) Limited as holder of natural gas Pipeline Licence No. 11.

    Co-existence with native title rights and interests
    The Other Interests co-exist with the native title rights and interests and the determination does not affect the validity or the exercise of those Other Interests. To the extent that any of the Other Interests are inconsistent with the native title rights and interests, the Other Interests prevail but do not extinguish the native title rights and interests which continue to exist in their entirety.

    Provisions Relevant to the Native Title Rights

    Native title does not exist over
    - minerals or petroleum
    - natural resevoirs
    - geothermal energy

    The River Murray and Mallee Aboriginal Corporation is the prescribed body corporate, and is to perform functions required under the Native Title Act 1993 (Cth) and as such has been registered as the native title body corporate. The native title rights and interests are held on trust.
    Detailed Information:
    Background

    This determination concerns an application for the recognition of native title rights and interests lodged in 1998, one of the earliest claims made in South Australia. The application was accepted for registration in 2000 after amendments were made to the initial application.

    In total the claim area covers some 260 square kilometres of land and waters in the Riverland, South Australia (National Native title Tribunal, 2011) and more than 300 areas of crown land (Martin, 2011).

    Details of Judgement
    The First Peoples of the River Murray and the Mallee Region, the State of South Australia, the Commonwealth and other parties to the application came to an agreement as to how the claim should be resolved.

    There was a determination of native title rights and interests and a direction providing for immediately following the making of the Determination, the State and the Applicants will execute the River Murray and Crown Lands Indigenous Land Use Agreement (ILUA). The ILUA states the manner of exercise of the native title and traditional rights, any full and final compensation benefits.

    The court was satisifed under s87 of the Native Title Act 1993 (Cth) that the making of the Determination in the terms proposed by the parties was appropriate and within the power of the court considering the manner in which the agreement was made.


    Related Entries

    Agreement
  • The River Murray and Crown Lands Indigenous Land Use Agreement (ILUA)
  • Organisation
  • South Australian Native Title Services Limited - Respondent
  • State of South Australia - Respondent
  • Commonwealth of Australia - Respondent
  • Telstra Corporation Limited - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Telecommunications Act 1975 (Cth)
  • Telecommunications Act 1991 (Cth)
  • Telecommunications Act 1997 (Cth)
  • People
  • First Peoples of the River Murray & Mallee Region - Native Title Claimant

  • References

    General Reference
    National Native Title Tribunal (2011) Native title determination summary - First Peoples of the River Murray & Mallee Region
    National Native Title Tribunal (2000) Registration decision - SC98/3-2 First Peoples of the River Murray & Mallee Region Native Title Claim
    Newspaper Article
    Peta Martin (2011) First Peoples of the River Murray and Mallee Native Title success

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Aboriginal Corporation (Australia) | Applicant | Area Agreement (Australia) | Claimant Application (Native Title Act 1993 (Cth)) (Australia) | Indigenous Land Use Agreement (ILUA) (Native Title Act 1993 (Cth)) (Australia) | Legislation | Lease | National Native Title Tribunal (NNTT) (Australia) | National Park | Native Title (Australia) | Native Title Applicants | Native Title Applications/Claims (Australia) | Native Title Claimants (registered) (Australia) | Native Title Determination (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title Registers | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Registration Test (Native Title Act 1993 (Cth)) (Australia)

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