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McNamara on behalf of the Gawler Ranges People v State of South Australia  FCA 1471
|Binomial Name:||Federal Court of Australia|
|Date:||19 December 2011|
|Sub Category:||Consent Determination (Native Title Act)|
|Location:||Gawler Ranges and surrounding areas, South Australia , Australia|
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|The determination area covers land recognised as the land of the Gawler Ranges People which includes the Gawler Ranges and the salt lake region immediately to their north. The total area covered by the claim is approximately 3.5 million hectares. The majority of the claim area is pastoral land (approximately 76%) with the remainder covered by Park (21%) or other Crown Record. There are also two small townships within the claim area, Glendambo and Kingoonya. There are three National Parks within the area: Gawler Ranges National Park, the Lake Gairdner National Park and Lake Gilles Conservation Reserve.|
|Legal Status:||Registered on the National Native Title Tribunal register of Consent Determinations|
|Legal Reference:||Tribunal file no.: SC97/7; Federal Court no.: SAD6020/1998|
|Subject Matter:||Access | Cultural Heritage | Environmental Heritage | Land Management | Native Title | Pastoral Activities | Recognition of Native Title or Traditional Ownership|
|Between: Elliott Lancelot McNamara, Kenneth Harry Smith, Howard Richards, Andrew Dingaman on behalf of the Gawler Ranges People|
The State of South Australia and Others(RESPONDENTS)
Judge: Mansfield J
Where made: Paney
Native title exists in the parts of the determination area. It consists of non-exclusive native title rights.
Native title was granted to Gawler Ranges people who are descedents of Gawler Ranges ancestors or are recognised by other native title holders as a Gawler Person.
The determined native title rights and interests over the determination area include:
- the right to access;
- the right to live, to camp and erect shelters;
- the right to hunt;
- 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 resources of the area;
- the right to use the natural water resources;
- the right to cook and light fires for domestic purposes;
- the right to engage and participate in cultural activities;
- the right to conduct ceremonies and hold meetings;
- the right to teach 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; and
- the right to be accompanied on to the determination area by those people who are spouses of native title holders or people 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 Gawler Ranges People.
Non-native title rights and interests that exist within the determination area
- various pastoral leases;
- the rights of the State of South Australia;
- The rights and interests of South Australia and to the public to access Gawler Ranges National Park, Lake Gairdner National Park and Lake Gilles National Park pursuant to and under the National Parks and Wildlife Act 1972 (SA);
- the rights and interests of persons to whom valid or validated rights and interests have been granted or recognised by the State of South Australia or by the Commonwealth of Australia pursuant to statute or otherwise in the exercise of executive power;
- 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 statutory or common law duties;
- the rights and interests of all parties in relation to the following indigenous land use agreements (ILUAs): Moonaree Pastoral ILUA, Coondambo Pastoral ILUA, Kokatha Pastoral ILUA, Siam North Pastoral ILUA, Hiltaba Pastoral ILUA, Wilgena Pastoral ILUA (AJ & PA McBride Pty Ltd), Lockes Claypan Pastoral ILUA, Yardea Pastoral ILUA, Thurlga Pastoral ILUA, Yeltana Pastoral ILUA, Part Hiltaba Pastoral ILUA, Siam Pastoral ILUA, Yarna Pastoral ILUA, Koweridda Pastoral ILUA and Lake Everard Pastoral ILUA;
- the rights and interests of Telstra Corporation Limited as the as the owner or operator of telecommunications facilities within the Determination Area, rights and interests created pursuant to statute or created under any lease or agreement relating to its telecommunications facilities in the Determination Area;
- the Commonwealth rights and interests in the Woomera Prohibited Area;
- the rights, interests and entitlements of ETSA Utilities to exercise its entitlements and discharge its obligations as the owner and/or operator of electricity infrastructure and telecommunications facilities and infrastructure within the Determination Area; and
- the rights and interests created by Crown Lease Miscellaneous No. 20983 for tourism purposes Volume 1640 Folio 67.
In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title however the native title rights will continue to exist in their entirety.
Provisions Relevant to the Native Title Rights
The native title is held by the Gawler Ranges (Aboriginal Corporation). The Gawler Ranges (Aboriginal Corporation) is to perform the functions under s 57(3) of the Native Title Act 1993 (Cth) as the the prescribed body corporate, after becoming a registered native title body corporate. The native title is not held on trust.
The Gawler Ranges Claim Group first lodged an application with the National Native Title Tribunal in 1997 for the recognition of native title in relation to lands and waters in the Gawler Ranges area of South Australia.
The Gawler Ranges People and the State of South Australia and the other respondents reached an agreement as to the terms of a determination of native title to be made in relation to the land and waters covered by the native title application. They then filed the agreement in the Federal Court seeking the making of Consent Orders for a determination of native title pursuant to s 87(2) of the Native Title Act 1993 (Cth).
The consent determination built upon a number of agreements in relation to mineral exploration and pastoral interests which resulted in sixteen indigenous land use agreements (ILUAs) being registered between 2009 and 2010. The Gawler Ranges claim group also signed an additional ILUA with the South Australian Government to settle all compensation issues arising from the native title claim and signed a further three ILUAs with the South Australian Government in relation to the co-management of the Gawler Ranges National Park and Lake Gairdner National Park within the determination area (South Australian Native Title Services, 2011; National Native Title Tribunal, Native title claim resolved in upper Eyre Peninsula, 2011).
Native title lawyer Andrew Beckworth stated that the Aboriginal people from the Gawler Ranges have had strong links to the determination area for thousands of years. The determination will also allow for Gawler Ranges people to actively engage in the management of their country with 'three Aboriginal rangers in the Gawler Ranges National Park.. only [improving] the way these parks are managed,' (ABC Online, 2011).
South Australia's acting Attorney-General John Hill stated that the native title claim recognised the Gawler Ranges people had an ancient and ongoing connection to the area (Koori Mail, 2012).
Details of the Judgement
The parties to the determination reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The Federal Court was satisfied that it had the power to grant the consent determination and granted native title rights and interests to the Gawler Ranges People over 3.5 million hectares of land and waters in the Gawler Ranges region.
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