South East Councils — Native Title Alert

5 April 2018

On 21 March 2018, Justice Mortimer of the Federal Court of Australia handed down a decision and orders to reflect a “consent determination” and an “Indigenous Land Use Agreement” (“ILUA”) reached between the Kaurna People and the State of South Australia with regard to the existence, and extent, of native title rights and interests in over 7,000 square kilometers of land in South Australia.

The orders recognise the Kaurna People as the traditional owners of land and waters running from Myponga to Lower Light, and from the foothills to Adelaide’s coastline (“the determination area”).

The orders have the effect of:

• formalising native title over 17 parcels of land and waters within the determination area; and
• extinguishing native title for the balance of the determination area.

The decision is the first positive determination of native title over any area within an Australian capital city. The full consent determination judgment and maps can be viewed here.

The parties to the application included the Native Title claim group as the applicant, and the respondents included the State of South Australia, holders of commercial fishing interests within the claim area, Telstra, SA Power Network, holders of water licences within the claim area, and 27 local councils. Kelledy Jones Lawyers represented one of the respondent councils in this claim.

Importantly, as readers would be aware, local councils have care, control and management of substantial areas of land, and carry out functions on behalf of the wider community, which can include areas where a claim for native title now exists, or may exist in the future.

Accordingly, when planning an activity or development in areas where native title does (or may) exist, councils will need to consider the possible impact of those activities on native title rights and interests. To that end, councils may need to consider and follow the native title compliance procedures under the Native Title Act 1993 (Cth), the Native Title (South Australia) Act 1994 (SA) or (where one exists) an ILUA.

Why is this relevant to your council?

 You may or may not be aware that on 10 November 2017, the National Native Title Tribunal registered a native title claim by the “First Nations of the South East #1” on the Register of Native Title Claims.

The claim seeks a declaration of native title in the lands and waters covering the areas of seven (7) south east councils (albeit excluding those areas over which native title has otherwise been extinguished).

Notification of the native title claim commenced on 4 April 2018 and will continue until 3 July 2018. During this time, the councils affected by the claim will be advised, and will be invited to be joined as a respondent to the matter.

Your council may be a council affected by this native title claim.

Kelledy Jones Lawyers is available to provide representation in this matter, whether your council intends to join the claim as a respondent or simply seeks preliminary advice on same. Otherwise, if you would like further information or advice as to your council’s position please do not hesitate to contact Tracy Riddle on 08 8113 7106 or at triddle@kelledyjones.com.au or Victoria Shute on 08 8113 7104 or at vshute@kelledyjones.com.au.