FEDERAL COURT OF AUSTRALIA

Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847

NATIVE TITLE – determination of native title by consent

TREVOR CLOSE ON BEHALF OF THE GITHABUL PEOPLE v MINISTER FOR LANDS, NTSCORP LIMITED AND CASINO RURAL LANDS PROTECTION BOARD

NSD 6019 OF 1998

BRANSON J

29 NOVEMBER 2007

WOODENBONG

THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT:

Existence of native title

1.                  Native title exists in relation to the land and waters described in Attachment 1 (“Consent Determination Area”).

Native title holders

2.                  Native title is held by the “Githabul People” who are a group comprising Aboriginal persons who are:

(a)                the biological descendants of Yagoi, Billy Williams, Doctor or Billy Williams, Julia Charles, Hughie Williams, Mary Williams, Elizabeth Williams, Lily Williams, Elsa/Eileen Williams, Euston Williams, Jimmy Sambo, Dan Sambo, Emily Sambo, Margaret Sambo, Jean Sambo, Timegar Sambo, Jerry Wagner, Alec Bond, Rene Bond, Anne Hippine, Lily Harrison, Dillon Harrison, Elizabeth Sutherland, Arthur Bundock, Fred Yarrie, Margaret Yarrie, Sam Yarrie, Bob Yarrie, Syd Yarrie, Kitty, Billy McBride, Elizabeth McBride, Gergan Williams, Minnie Williams, Clara Williams, Girlille, Lena Weekly, Emily Weekly, John Devan, Dolly Devan, Tom Close, Nellie Devine, Roy Close, Violet Cliff, Sarah Kenny, Lizzy Andrew, Digger Marine or Mareen, Bill Williams, Nellie Williams, Alice Williams, Arthur Williams, Faraway Hart, Tommy Boyd, Roger Boyd, Bill Hill Snr, King Edward Derry, Billy King Snr, Bill Brown, and Tommy Kenny; and

(b)               persons adopted into the families of those persons (and the biological descendants of any such adopted persons); and

(c)                identify themselves as members of the Githabul People; and

(d)               are recognised by the Githabul People as being members of the Githabul People.

Nature and extent of native title rights and interests

3.         The nature and extent of the rights and interests held by the Githabul People in the Consent Determination Area are the non-exclusive rights to:

(i)         access, and camp on, the Consent Determination Area;

(ii)        fish, hunt and gather animal and plant resources for personal, domestic and non-commercial communal consumption;

(iii)       take and use water for personal, domestic and non-commercial communal purposes;

(iv)       access the Consent Determination Area for spiritual purposes and to access sites of spiritual significance in the Consent Determination Area; and

(v)        protect, by lawful means, places of importance to the Githabul People in the Consent Determination Area from physical harm.

4.         The native title rights and interests held by the Githabul People do not confer possession, occupation, use and enjoyment of the Consent Determination Area to the exclusion of all others nor any right to control access or to make decisions concerning the use of the land and waters in the Consent Determination Area.

5.         Native title does not exist in:

(a)                minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2003 (NSW); and

(b)               petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW) and the Petroleum (Submerged Lands) Act 1982 (NSW); and

(c)                uranium.

Nature and extent of other interests

6.         The nature and extent of other interests in relation to the Consent Determination Area are as follows:

(a)                the rights and interests described in Attachment 2;

(b)               the valid and validated rights and interests granted by the Crown pursuant to or otherwise conferred by the laws of the State of New South Wales or Commonwealth, or by any executive act;

(c)                rights and interests of members of the public arising under the laws of the State of New South Wales or Commonwealth or arising under the common law;

(d)               the rights and interests of Telstra Corporation Limited:

(i)                  as the owner or operator of telecommunications facilities within the Consent Determination Area, including customer radio terminals and overhead and underground cabling;

(ii)                as the holder of a carrier licence under the Telecommunications Act 1997 (Cth);

(iii)               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) and the Telecommunications Act 1997 (Cth), including the right to install customer radio terminals and the right to install cabling; and

(iv)              for its employees, agents or contractors to enter the Consent Determination Area in the performance of their duties, to access its telecommunications facilities in, and in the vicinity of, the Consent Determination Area;

(e)                the rights of any of the following parties, or any of their employees or agents, to access the Consent Determination Area for the performance of their duties:

(i)                  the State of New South Wales and its agencies and instrumentalities;

(ii)                the Commonwealth and its agencies and instrumentalities;

(iii)               Casino Rural Lands Protection Board; and

(iv)              local government authorities, including the Kyogle Shire Council and Tenterfield Shire Council; and

(f)                 the rights and interests of an electricity supply authority within the meaning of the Electricity (Consumer Safety) Act 2004 (NSW) to exercise functions, powers or rights in accordance with the laws of the State of New South Wales or Commonwealth and as owner and operator of electricity transmission facilities and associated infrastructure situated on the Consent Determination Area including but not limited to the right to enter the Consent Determination Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with facilities and infrastructure.

Relationship between native title rights and other interests

7.         The relationship between the native title rights and interests and the other interests in the Consent Determination Area is that:

(a)                the other rights and interests continue to have effect; and

(b)               the other rights and interests and any activity done in accordance with or incidental to the exercise of a right conferred or held under the other rights and interests, while they are in existence, prevail over but do not extinguish the native title rights and interests and any exercise of those native title rights and interests.

8.         The native title rights and interests in the Consent Determination Area are subject to and exercisable in accordance with;

(a)                the laws of the State of New South Wales and the Commonwealth; and

(b)               the traditional laws acknowledged and traditional customs observed by the Githabul People;

(c)                the terms of the Indigenous Land Use Agreement registered by the National Native Title Tribunal on 15 August 2007.

Prescribed Body Corporate

9.         In accordance with the Applicant’s nomination of the Githabul Corporation, it shall:

(a)                be the prescribed body corporate for the purposes of sections 56, 57(2) and 57(3) of the Native Title Act 1993 (Cth);

(b)               not hold the native title in trust;

(c)                act as agent for the Githabul People who are the common law holders of  the native title rights and interests;

(d)               perform the functions set out in the Native Title Act 1993 (Cth) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

Costs

10.       Each party shall be liable to pay their own costs arising from the Proceedings.

Definitions

11.       In these orders, unless the contrary intention appears:

“camp” means casual camping and does not include the right to permanently reside or build permanent structures or fixtures.

“Consent Determination Area” means the land and waters described and mapped in Attachment 1.

“Githabul People” means the native title holders as described in order 2.

“Githabul Corporation” means the Githabul Nation Aboriginal Corporation incorporated under the Aboriginal Councils and Associations Act 1976 (Cth).

“laws” include statutes, regulations and other subordinate legislation and the common law.

“Proceedings” means the application for determination of native title made by Trevor John Close for and on behalf of the Githabul People (NC95/11; NSD6019/98) and any matters arising from those proceedings.

“validated” means acts validated in accordance with the Native Title Act 1993 (Cth), the Native Title (New South Wales) Act 1994, and the terms of the Indigenous Land Use Agreement registered with the National Native Title Tribunal on 15 August 2007.

12.       If a word or expression is not defined in these orders, but is defined in the Native Title Act 1993 (Cth), then it has the meaning given to it in the Native Title Act 1993 (Cth).

Date:                                                                                         ________________________

                                                                                                                  Judge

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ATTACHMENT 1 – CONSENT DETERMINATION AREA

The land and waters in which the Githabul People hold native title are the parcels described in this attachment and as shown on the map attached.

To avoid doubt, the land and waters do not include:

(a)        any land or waters on which valid or validated public works were situated or are currently situated, including any adjacent lands within the meaning of section 251D of the Native Title Act 1993 (Cth); or

(b)        any area used or previously used as a dip site or yard used for the dipping and treating of cattle in the prevention of ticks and any adjacent land the use of which is or was necessary for or incidental to the construction establishment or operation of those sites or yards.

In the event of an inconsistency between the written description provided in this attachment and the map, the written description shall prevail.

National Parks

State Forests

Dairy Flat Travelling Stock Reserve

ATTACHMENT 2 – OTHER RIGHTS AND INTERESTS

 The nature and extent of the other rights and interests in relation to the Consent Determination Area are as follows:

1.                  The rights and interests of Casino Rural Lands Protection Board to care for, control and manage the Dairy Flat Travelling Stock Reserve and the interests of persons entitled to access and use Dairy Flat Travelling Stock Reserve, subject to any statutory limitations upon those rights.  Dairy Flat Travelling Stock Reserve consists of the following parcels:

Lot 7012 DP 1055052

Lot 7005 DP 1056729

Lot 7008 DP 1056726

Lot 7009 DP 1056726

Lot 7005 DP 1060274 excluding Lots 9, 10, 11 DP1060274

Lot 7005 DP 1056716

Lot 7012 DP 1056001

2.                  The valid and validated rights and interests granted by the Crown pursuant to or otherwise conferred by the laws of the State of New South Wales or Commonwealth of Australia, or by any executive act.

REASONS FOR JUDGMENT

BRANSON J

1                     The Federal Court sits today at Woodenbong to hear and determine an application for the Court to exercise its power under s 87 of the Native Title Act 1993 (Cth).  Section 87 authorises the Court to make orders in the terms of an agreement reached between the parties without holding a hearing.  The orders that the Court is invited to make today will recognise the existence of the native title held by the Githabul People in the consent determination area. The area covers land and waters in the northern part of New South Wales covering identified areas of New South Wales State Forests, New South Wales National Parks and parts of the Dairy Flat Travelling Stock Reserve.

2                     The application for a determination of native title in this area and an adjoining area in Queensland was lodged with the National Native Title Tribunal on 5 September 1995.  Following the enactment of the Native Title Amendment Act 1998 (Cth) the application was taken to have been made to this Court (Part 3 of Schedule 5 of the Native Title Amendment Act 1998).  The Court referred the application, together with two overlapping claims, to the Tribunal for mediation.  Subsequently the overlapping claims were discontinued and the application amended including by the deletion of any claim over land and waters in Queensland.

3                     An Indigenous Land Use Agreement, being an area agreement of the kind dealt with in Subdivision C of Division 3 of Part 2 of the Native Title Act, was signed by the parties on 27 February 2007.  The Agreement was registered by the Tribunal on 15 August 2007.  By clause 6 of the Agreement the State recognised that the Githabul People hold native title in accordance with the consent orders that the Court is invited to make today and agreed to join with the registered native title claimant in applying for those consent orders to be made by the Court.  It is as a result of that application that the Court sits here today.

4                     The Court is authorised to make a consent determination under s 87 at any stage after the end of the period specified in the notice given under s 66 of the Native Title Act where it is satisfied that:

(a)                agreement has been reached between the parties on the terms of an order of the Court in relation to the proceeding;

(b)               the terms of the agreement, in writing signed by or on behalf of the parties, have been filed with the Court; and

(c)                the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court (s 87(1)).

5                     The period specified under s 66 of the Act has long passed; it expired on 15 April 1996.  Consent determination orders signed by each party have been filed with the Court.  The orders reflect an agreement reached between the parties on the terms of orders of the Court in relation to the proceeding.  I am satisfied that an order in those terms would be within the power of the Court and would comply with the requirement that an order that makes a determination of native title must set out details of the matters mentioned in s 225 of the Native Title Act.  I therefore conclude that the Court is authorised to make the consent determination under s 87 of the Act.

6                     The final matter to which s 87(1) requires me to consider is whether it appears to be appropriate to make the consent determination.  In considering whether it appears to be appropriate to make the consent determination I take into account that the applicant, representing the Githabul People, and the State have together asked the Court to make the determination.  I also take into account that the Native Title Act discloses an intention that mediation leading to agreement should be the primary means of resolving native title applications.  I note that in this case the parties have been assisted during the mediation process by independent and competent legal representatives.  I am satisfied by the affidavit evidence placed before the Court that as a consequence the respective interests of the parties have been protected.  I am also satisfied that the State of New South Wales has given appropriate consideration to all relevant evidence and other material in the interests of the community generally.

7                     I conclude that it is appropriate to make the consent determination orders sought by the parties and I now make those orders.  One of those orders is that the Githabul Nation Aboriginal Corporation is to hold the native title rights and interests as agent for the Githabul People who are the common law holders (s 56 and s 57(2) and (3)).  A sealed copy of the orders made today will be held in the records of the Federal Court.

8                     As this Court has now emphasised on many occasions, the orders of the Court do not grant native title; the orders recognise that the Githabul People have long held rights and interests in the land under the traditional laws acknowledged and the traditional customs observed by them (s 223).

9                     Today is therefore a most significant day for the Githabul People and a significant day in the history of New South Wales.  I congratulate the parties on reaching the agreement that is reflected in the orders made today.  They have persevered over a long time.  Reaching an agreement of this kind can take a lot of hard work and it requires the development of mutual trust.  I commend the parties on their achievement.  I am pleased to see so many members of the claim group and respondent parties here today to witness the realisation of their efforts.  The agreement is their agreement, not that of their lawyers, the National Native Title Tribunal or the Court.  It reflects great credit on the Githabul People and particularly the named applicant Mr Trevor Close, the State of New South Wales, NTSCORP Limited and the Casino Rural Lands Protection Board.

10                  I also commend the legal representatives of the parties who have so ably assisted them to reach this noteworthy agreement.  Turning first to the legal representatives of the applicant, I would particularly like to thank Mr McAvoy of counsel, Mr Behrendt from Chalk and Fitzgerald and the staff of NTSCORP Limited including Mr Rind and Mr Chapman (who are no longer with NTSCORP Ltd) and Ms Rotumah.  For the State of New South Wales I would particularly like to thank Mr Hughston SC with Mr Waters of counsel and Ms Illiadis from the NSW Crown Solicitors Office and Ms Jude and Ms Khan (who has since left the Department of Lands) for their assistance throughout the proceeding and for their persistence in moving the matter forward towards an agreed outcome.  Additionally I express my thanks to Registrar Kavallaris and Mr Hartop of the Federal Court of Australia for their assistance to me and the parties in this matter.

11                  I would also like to acknowledge and commend the contribution of the members and staff of the National Native Title Tribunal for their efforts in assisting the parties to conduct the meaningful negotiations which resulted in the Indigenous Land Use Agreement that I have already mentioned and today’s consent determination.

12                  Because this is such a significant occasion, the Court has prepared bound versions of the orders that the Court has made today.  The orders will now be entered and, in a moment, I will invite a representative of each party to step forward to receive a bound copy of the orders.

13                  Before adjourning the Court I wish to thank all those who have worked so hard to make today such a wonderful occasion.

14                  Once again I congratulate the parties on reaching agreement in this matter.

15                  I now formally adjourn the Court.

Associate:

Dated:         29 November 2007