FEDERAL COURT OF AUSTRALIA

Yaegl People #1 v Attorney General of New South Wales [2015] FCA 647

BEING SATISFIED that a determination of native title in the terms sought by the parties is within the power of the Court, and it appearing appropriate to do so by consent of the parties,

PURSUANT TO SS 87(1) AND (2) AND 94A OF THE NATIVE TITLE ACT 1993 (CTH), THE COURT ORDERS THAT:

1.    There be a determination that native title exists in the terms set out below (the Determination).

2.    The native title as determined is to be held on trust by Yaegl Traditional Owners Aboriginal Corporation RNTBC.

3.    Yaegl Traditional Owners Aboriginal Corporation RNTBC is to:

(a)    be the prescribed body corporate for the purposes of s 57(1) of the Native Title Act 1993 (Cth) (the NTA); and

(b)    perform the functions set out in s 57(1) of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

4.    There be no order as to costs.

THE COURTS NOTES THAT:

A.    On 27 November 1996, the Applicant in proceeding NSD6052 of 1998 made a native title determination application (‘Yaegl People’s #1 Application’) that relates to an area of land and waters including the waters and estuaries of the Clarence River from Harwood to the mouth of the river at Yamba on the north coast of New South Wales, the subject of a proposed determination of native title (‘Claim Area’).

B.    The parties have reached an agreement as to the terms of the determination of native title to be made in relation to the Claim Area.

C.    The terms of the agreement involve the making of orders by consent for a determination pursuant to sections 87 and 94A of the NTA that native title exists in relation to certain land or waters in the Claim Area.

D.    Pursuant to sections 87 and 94A of the NTA, the parties have filed a Minute of Proposed Consent Determination of Native Title which reflects the terms of the agreement reached by them.

E.    The Applicant has nominated the Yaegl Traditional Owners Aboriginal Corporation RNTBC pursuant to section 56(2) of the NTA to hold the determination native title on trust for the common law native title holders.

F.    The Yaegl Traditional Owners Aboriginal Corporation RNTBC has consented in writing to hold the rights and interests comprising the native title on trust for the common law holders and to perform the functions of a registered native title body corporation under the NTA.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE DETERMINATION

Existence of native title

1.    The Determination Area comprises the areas of land or waters described in Schedule One and shaded green on the plan in Schedule Two.

2.    Native title exists in relation to the areas of land or waters in the Determination Area in the manner set out in paragraphs 5 to 8.

3.    Native title has been extinguished in the land and waters described in Schedule Three (‘the Extinguished Areas’).

Native title holders

4.    Native title in the Determination Area is held by the Yaegl People who comprise all the descendants of the following apical ancestors:

(a)    Dugald Cameron (who was born in Chatsworth Island around 1870);

(b)    Jack Freeburn (who was born in Yamba around 1868);

(c)    Sailor Morris (who was born in Chatsworth Island around 1831);

(d)    Nodo Combo (who was born in Yamba around 1859); and

(e)    Rose Combo nee Yamba and also known as Rosie Yamba (who was born in Yamba around 1856);

and persons adopted or incorporated into the families of those persons and who identify as and are accepted as Yaegl People in accordance with Yaegl traditional laws and customs (and the biological descendants of any such adopted or incorporated persons).

Nature and extent of native title rights and interests

5.    Subject to paragraphs 6 to 8, the nature and extent of the native title rights are:

(a)    the right to enter, travel over and remain on a non-permanent basis on the Determination Area;

(b)    the right to live on the land, to camp, to erect shelters, and to move about the land in the Determination Area but not extending to a right to permanently occupy or possess the land;

(c)    the right to engage in cultural activities, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death in the Determination Area;

(d)    the right to hunt in the Determination Area;

(e)    the right to fish in the Determination Area;

(f)    the right to take and use the water of the Determination Area for personal, domestic and communal purposes (including cultural purposes) but not extending to a right to control the use and flow of the water in any rivers or lakes which flow through or past or are situated within the land of two or more occupiers;

(g)    the right to gather and use the natural resources in the Determination Area including food, medicinal plants, timber, stone, charcoal, ochre and resin as well as materials for fabricating tools and hunting implements and making artwork and musical instruments;

(h)    the right to light fires on the Determination Area for domestic purposes, but not for the clearance of vegetation;

(i)    the right to share, offer and exchange traditional resources derived from the Determination Area;

(j)    the right to have access to, maintain and protect from physical harm, sites and places of importance in the Determination Area which are of significance to Yaegl People under their traditional laws and customs;

(k)    the right to teach on the Determination Area the physical, cultural and spiritual attributes of places and areas of importance on or in the Determination Area; and

(l)    the right to be accompanied on the Determination Area by persons who, though not native title holders, are:

(i)    spouses, partners or parents of native title holders, together with their children and grandchildren;

(ii)    people whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies; and

(iii)    people requested by the native title holders to assist in, observe or record cultural activities, practices or ceremonies.

6.    The native title rights and interests referred to in paragraphs 5(a) to (l) are not exclusive.

General qualifications on native title rights and interests

7.    Native title does not exist in:

(a)    minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2010 (NSW); and

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

8.    The native title rights and interests in the Determination Area do not confer:

(a)    possession, occupation, use or enjoyment to the exclusion of all others; and

(b)    any right to control public access to, or public use of, the land or waters in the Determination Area.

9.    The native title rights and interests in the Determination Area are subject to and exercisable in accordance with:

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

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

(c)    the terms of any Indigenous Land Use Agreement which may at any time be registered by the National Native Title Tribunal in respect of any part of the Determination Area.

Nature and extent of other interests

10.    The other interests in relation to the Determination Area are the interests described in Schedule Four (‘Other Interests’).

Relationship between native title rights and other interests

11.    The relationship between the native title rights and interests in the Determination Area and the Other Interests is that:

(a)    the Other Interests continue to have effect;

(b)    the Other Interests co-exist with the native title rights and interests;

(c)    the native title holders do not have the right to control access to or the use of the land or waters by the holders of the Other Interests, acting in accordance with those Other Interests; and

(d)    to the extent of any inconsistency, the Other Interests and any activity that is required or permitted by or under the exercise of a right conferred or held under the Other 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.

Definitions

12.    In this Determination and the associated orders, unless the contrary intention appears:

‘Claim Area’ means the land or waters subject to native title determination application NSD6052 or 1998 (The Yaegl People’s #1 Application).

‘Determination Area’ means the land and waters described in Schedule One and depicted on the plan in Schedule Two.

‘Extinguished Areas’ means the land and waters described in Schedule Three and depicted on the plan in Schedule Two.

‘laws of the State of New South Wales and of the Commonwealth’ include statutes, regulations and other subordinate legislation and the common law.

‘Native Title Act’ means the Native Title Act 1993 (Cth).

‘native title rights and interests’ means the rights and interests described in paragraph 5.

‘Other Interests’ means the described in Schedule Four.

‘validated’ means acts validated in accordance with the Native Title Act or the Native Title (New South Wales) Act 1994 (NSW).

‘Yaegl People’ means the native title holders described in paragraph 4.

‘Yaegl Traditional Owners Aboriginal Corporation RNTBC’ means Yaegl Traditional Owners Aboriginal Corporation RNTBC incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

13.    If a word or expression is not defined in the Determination or the associated orders, but is defined in the Native Title Act, then it has the meaning given to it in the Native Title Act.

Schedule One

Description of the Determination Area

1.    The Determination Area is comprised of the areas of land and waters identified in paragraph 4 below.

2.    The Determination Area is also depicted on the plan in Schedule Two. For the sake of clarity, it is confirmed that the Determination Area does not include the unclaimed areas of land or waters in respect of which native title does not exist by reason of extinguishment.

3.    In the event of any inconsistency between the written description provided in paragraph 4 in this Schedule and the plan in Schedule Two, the written description shall prevail.

4.    The area covered by the Determination is the lands and waters including the tidal water within the described area below:

Note for interpretation of description: In this description all references to river banks (right, left or by cardinal points), foreshores and the South Pacific Ocean relate to their position at the Mean High Water Mark. All references to river banks relate to the right or left bank as the river flows. Due to the number of channels and lagoons that are tidal and do not flow in a specific direction reference to their banks is by cardinal points. DP refers to Deposited Plan.

(a)    Commencing on the right bank of the Clarence River at the eastern extremity of the breakwater that meets the South Pacific Ocean. Thence by the general right bank of the Clarence River, aforesaid, upwards to the general eastern bank of Oyster Channel. By the general eastern bank generally southerly and the foreshore of Wooloweyah Lagoon to the general south western bank of Palmer Channel. By that general south western bank generally north westerly to the general right bank of Clarence River, aforesaid. Again, by the general right bank of Clarence River and the right bank of James Creek upwards to its intersection with the prolongation of the general southern boundary of lot 1 of DP650930 (being the tidal limit of James Creek). By that prolongation generally north westerly to the left bank of James Creek, aforesaid. By that left bank downwards to again the general right bank of Clarence River upwards to its intersection with the eastern edge of Pacific Highway. By that eastern edge of the Pacific Highway, aforesaid, to the general left bank of Clarence River. By that left bank downwards and the general southern and western banks of Palm Channel generally westerly and generally northerly and the general right bank of Narho Creek upwards to the north west corner of lot 2 of DP594030.

Thence by an unnamed road generally north easterly to the left bank of Narho Creek, aforesaid. By that left bank downwards and the general western bank of Palm Channel, aforesaid, generally northerly to the general left bank of Clarence River. By that general left bank downwards to the general southern bank of Middle Channel. By that general southern bank generally westerly and the general south eastern bank of Serpentine Channel generally south westerly to its intersection with the general north eastern edge of Pacific Highway, aforesaid. By that general north eastern edge generally north westerly to the general north western bank of Serpentine Channel. By that general north western bank generally north easterly to the general western bank of Middle Channel, aforesaid. By that general western bank generally northerly to the right bank of North Arm. By that right bank upwards to its intersection with the north eastern edge of Pacific Highway, aforesaid (at Mororo Bridge). By that north eastern edge north westerly to the left bank of North Arm. By that left bank, the foreshore of Shallow Inlet and again the left bank of North Arm downwards and the right bank of Woolpack Gully upwards to the southern edge of Iluka Road. By that southern edge easterly to the left bank of Woolpack Gully. By that left bank and again the left bank of north arm downwards, the right bank of Esk River upwards to the general northern boundary of lot Pt.94 of DP751394 (at Billy Weily Bridge). By the prolongation of that northern boundary easterly to the left bank of Esk River, aforesaid.

By that left bank downwards, the general northern boundary of Woram Channel easterly, the left bank of North Arm downwards, the foreshore of Saltwater Inlet, again the left bank of North Arm and the left bank of Clarence River downwards to the foreshore of Iluka Bay. By that foreshore and again the left bank of Clarence River downward to the eastern end of the northern breakwater at the South Pacific Ocean.

Thence by a line to the point of commencement.

(b)    The following islands that lie within the above definition are excluded from the Determination Area:

(i)    Dart Island, Wangainan Island, Periko Island, Ano Island, Corokos Island, Joss Island, Micalo Island, Palmers Island, Panibona Island, Tomayen Island, Romiaka Island, Maritzos Island, Thorny Island, Eureka Island, Ungandam Island, Yargai Island, Whyuna Island, Sleeper Island, Araiel Island, Turkey Island, Gourd Island, Palm Island, Goodwood Island, Freeburn Island, Rabbit Island, Arris Island, Bolorobo Island, Esk Island, Nihill Island, Narrabarribi Island, Garden Island, Woolbin Island; and

(ii)    three unnamed islands:

(A)    An unnamed island enclosed by the tidal waters of North Arm, Esk River and Woram Channel;

(B)    An unnamed island within Micalo Channel situated south west of Panibona Island and north east of Palmers Island; and

(C)    An unnamed island within Clarence River situated south east of Palm Island.

Schedule Two

Plan of the Determination Area

Schedule Three

Extinguished Areas

1.    The Extinguished Areas comprise:

(a)    any land or waters within the Claim Area on which there is or has been constructed or established valid or validated public works (including any adjacent land or waters as described in section 251D of the Native Title Act which were constructed or established prior to 23 December 1996 or were commenced to be constructed or established on or before that date);

(b)    without detracting from the generality of paragraph (a), any land or waters upon which a public road is or was commenced to be constructed or established, on or before 23 December 1996;

(c)    any roads established under statute or common law prior to 23 December 1996; and

(d)    the following land or waters:

2.    Any land covered by past or present freehold title or by previous exclusive possession acts as defined by section 23B of the Native Title Act (1993) (Cth) as follows:

(a)    a scheduled interest;

(b)    a freehold estate;

(c)    a commercial lease that is neither an agricultural nor a pastoral lease;

(d)    an exclusive agricultural lease or an exclusive pastoral lease;

(e)    a residential lease; and

(f)    a community purpose lease.

3.    The Extinguished Areas are also depicted on the plan in Schedule Two.

4.    In the event of an inconsistency between the written description provided in this Schedule and the plan in Schedule Two, the written description shall prevail.

Schedule Four

Other Rights and Interests in the Determination Area

1.    Reserves

(a)    The rights of organisations or persons who have the care, control and management of the following reserves; and

(b)    The rights of persons entitled to access and use the following reserves within the Determination Area for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:

2.    Permissive Occupancies

The rights of the holders from time to time of the following Permissive Occupancies granted by the State of New South Wales:

3.    Fishing interests

The rights of the holders from time to time of licences and permits granted under the Fisheries Management Act 1994 (NSW).

4.    Telstra Corporation Limited

The rights and interests of Telstra Corporation Limited (CAN 051 775 556):

(a)    as the owner or operator of telecommunications facilities within the Determination Area;

(b)    created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporations Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:

(i)    to inspect land;

(ii)    to install and operate telecommunications facilities; and

(iii)    to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;

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

(d)    under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.

5.    Electricity supply interests

(a)    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 of the Commonwealth and as owner and operator of electricity transmission facilities and associated infrastructure situated on the Determination Area including but not limited to the right to enter the Determination Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with facilities and infrastructure.

6.    Other interests

(a)    Rights and interests, including leases, licences, permissive occupancies and permits granted by the Crown in right of the State of New South Wales or of the Commonwealth pursuant to statute or under regulations made pursuant to such legislation;

(b)    Rights and interests held by reason of the force and operation of the laws of the State of New South Wales or of the Commonwealth;

(c)    Rights and interests of members of the public arising under common law or statute;

(d)    Any existing public access to and enjoyment of:

(i)    waterways;

(ii)    the bed and banks or foreshores of waterways;

(iii)    coastal waters;

(iv)    beaches;

(v)    stock routes; and

(vi)    areas that were public places at the end of 31 December 1993;

as at the date of the Determination, pursuant to section 18 of the Native Title (New South Wales) Act 1994 (NSW); and

(e)    The right to access the Determination Area by:

(i)    an employee, agent or instrumentality of the State of New South Wales;

(ii)    an employee, agent or instrumentality of the Commonwealth; and

(iii)    an employee, agent or instrumentality of an local government authority,

as required in the performance of his, her or its statutory or common law duty.

BEING SATISFIED that a determination of native title in the terms agreed by the parties, as recorded in the agreement between the parties made under s 87A(1) of the Native Title Act 1993 (Cth) (the NTA) and filed on 19 June 2015 (the agreement), is within the power of the Court, and appearing appropriate to so by consent of the parties,

PURSUANT TO SS 87A(4) AND (5) AND 94A OF THE NTA, THE COURT ORDERS THAT:

1.    There be a determination that native title exists in the terms set out below (the Determination).

2.    The native title as determined is to be held on trust by Yaegl Traditional Owners Aboriginal Corporation RNTBC.

3.    The Yaegl Traditional Owners Aboriginal Corporation RNTBC is to:

(a)    be the prescribed body corporate for the purposes of section 57(1) of the NTA; and

(b)    perform the functions set out in section 57(1) of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

4.    There be no order as to costs.

THE COURT NOTES THAT:

A.    On 23 February 2011, the Applicant in proceeding NSD 168 of 2011 made a native title determination application (‘Yaegl People’s #2 Application’) that relates to an area of land or waters the subject of a proposed determination of native title (‘Determination Area’) but which excludes land and waters where native title had been extinguished (‘the Extinguished Areas’).

B.    The parties have reached an agreement as to the terms of the determination of native title to be made in relation to the Determination Area and the Extinguished Areas.

C.    The terms of the agreement involve the making of orders by consent for a determination pursuant to sections 87A and 94A of the NTA that native title exists in relation to certain land or waters that are subject to the Yaegl People’s Application #2 as well as determining where native title has been extinguished.

D.    The parties have agreed that in respect of the land and waters referred to in Schedule Six (‘the Excluded Area’) no determination is to be made at present.

E.    Pursuant to sections 87A and 94A of the NTA, the parties have filed a Minute of Proposed Consent Determination of Native Title which reflects the terms of the agreement reached by them.

F.    The Applicant in the Yaegl People’s Application #2 has nominated the Yaegl Traditional Owners Aboriginal Corporation RNTBC pursuant to section 56(2) of the NTA to hold the determined native title in trust for the common law native title holders.

G.    Yaegl Traditional Owners Aboriginal Corporation RNTBC has consented in writing to hold the rights and interests comprising the native title in trust for the common law holders and to perform the functions of a registered native title body corporate under the NTA.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE DETERMINATION

Existence of native title

1.    The Determination Area comprises the areas of land or waters described in Schedule One and depicted on the Determination Plan in Schedule Two.

2.    Native title exists in relation to the areas of land or waters in the Determination Area in the manner set out in paragraphs 6 to 10.

3.    Section 47A of the Native Title Act 1993 (Cth) (‘Native Title Act’) applies to that part of the Determination Area described in Schedule Three.

4.    Native title has been extinguished and does not exist in the land and waters described in Schedule Five (‘the Extinguished Areas’).

Native title holders

5.    Native title in the Determination Area is held by the Yaegl People who comprise all the descendants of the following apical ancestors:

(a)    Dugald Cameron (who was born in Chatsworth Island around 1870);

(b)    Jack Freeburn (who was born in Yamba around 1868);

(c)    Sailor Morris (who was born in Chatsworth Island around 1831);

(d)    Nodo Combo (who was born in Yamba around 1859);

(e)    Rose Combo nee Yamba and also known as Rosie Yamba (who was born in Yamba around 1856); and

persons adopted or incorporated into the families of those persons and who identify as and are accepted as Yaegl People in accordance with Yaegl traditional laws and customs (and the biological descendants of any such adopted or incorporated persons).

Nature and extent of native title rights and interests

6.    Subject to Paragraphs 7 to 10, the nature and extent of the native title rights are:

(a)    the right to enter, travel over and remain on a non-permanent basis on the Determination Area;

(b)    the right to live on the land, to camp, to erect shelters, and to move about the land in the Determination Area but not extending to a right to permanently occupy or possess the land;

(c)    the right to engage in cultural activities, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death in the Determination Area;

(d)    the right to hunt in the Determination Area;

(e)    the right to fish in the Determination Area;

(f)    the right to take and use the water of the Determination Area for personal, domestic and communal purposes (including cultural purposes) but not extending to a right to control the use and flow of the water in any rivers or lakes which flow through or past or are situated within the land of two or more occupiers;

(g)    the right to gather and use the natural resources in the Determination Area including food, medicinal plants, timber, stone, charcoal, ochre and resin as well as materials for fabricating tools and hunting implements and making artwork and musical instruments;

(h)    the right to light fires on the Determination Area for domestic purposes, but not for the clearance of vegetation;

(i)    the right to share, offer and exchange traditional resources derived from the Determination Area;

(j)    the right to have access to, maintain and protect from physical harm, sites and places of importance in the Determination Area which are of significance to Yaegl People under their traditional laws and customs;

(k)    the right to teach on the Determination Area the physical, cultural and spiritual attributes of places and areas of importance on or in the Determination Area; and

(l)    the right to be accompanied on the Determination Area by persons who, though not native title holders, are:

(i)    spouses, partners or parents of native title holders, together with their children and grandchildren;

(ii)    people whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies; and

(iii)    people requested by the native title holders to assist in, observe or record cultural activities, practices or ceremonies.

7.    The native title rights and interests referred to in paragraph 6(a) to 6(l) are not exclusive.

General qualifications on native title rights and interests

8.    Native title does not exist in:

(a)    minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2010 (NSW); and

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

9.    The native title rights and interests in Paragraph 6 do not confer:

(a)    possession, occupation, use or enjoyment to the exclusion of all others; and

(b)    any right to control public access or public use of the land or waters in the Determination Area.

10.    The native title rights and interests in the Determination Area are subject to and exercisable in accordance with:

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

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

(c)    The terms of any Indigenous Land Use Agreement which may at any time be registered by the National Native Title Tribunal in respect of any part of the Determination Area.

Nature and extent of other interests

11.    The other interests in the Determination Area are the interests described in Schedule Seven (‘Other Interests’).

Relationship between native title rights and Other Interests

12.    Subject to paragraphs 13 and 14, the relationship between the native title rights and interests in the Determination Area and the Other Interests is that:

(a)    the Other Interests continue to have effect;

(b)    the Other Interests co-exist with the native title rights and interests;

(c)    the native title holders do not have the right to control access to or the use of the land or waters by the holders of the Other Interests, acting in accordance with those Other Interests; and

(d)    to the extent of any inconsistency, the Other Interests and any activity that is required or permitted by or under the exercise of a right conferred or held under the Other 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.

13.    In relation to the area of land and waters described in Schedule Three (where section 47A of the Native Title Act applies and prior extinguishment is disregarded), the relationship between the native title rights and interests in the Determination Area that are described in paragraph 6 and the Other Interests is that:

(a)    the Other Interests continue to have effect;

(b)    the non-extinguishment principle in section 238 of the Native Title Act applies to the grant or vesting of the Other Interests or any other prior interest in relation to the area in accordance with section 47A(3)(b) of the Native Title Act; and

(c)    the native title rights and interests continue in their entirety but have no effect in relation to the Other Interests, and any activity that is required or permitted by or under and done in accordance with the Other Interests prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them except in accordance with law.

14.    In relation to the land and waters described in Schedule Four and any other land and waters in the Determination Area transferred to an Aboriginal Land Council under the Aboriginal Land Rights Act 1983 (NSW) (‘Aboriginal Land Rights Act’) as a result of claims lodged on or after 28 November 1994, the Other Interests will be subject to the native title rights and interests.

Definitions

15.    In this Determination and the associated orders, unless the contrary intention appears:

‘Determination Area’ means the land and waters described in Schedule One and depicted on the Determination Plan in Schedule Two.

‘Determination Plan’ means the plan in Schedule Two.

‘Excluded Area’ means land and waters in respect of which the parties have agreed that no determination of native title is to be made at present being the areas described in Schedule Six.

‘Extinguished Areas’ means the land and waters described in Schedule Five and depicted on the Determination Plan in Schedule Two.

‘laws of the State of New South Wales and of the Commonwealth’ include statutes, regulations and other subordinate legislation and the common law.

‘Native Title Act’ means the Native Title Act 1993 (Cth).

‘Other Interests’ means the interests described in Schedule Seven.

‘validated’ means acts validated in accordance with the Native Title Act or the Native Title (New South Wales) Act 1994 (NSW).

‘Yaegl People’ means the native title holders as described in Paragraph 5.

‘Yaegl Traditional Owners Aboriginal Corporation RNTBC’ means Yaegl Traditional Owners Aboriginal Corporation RNTBC incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

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

Schedule One

Description of the Determination Area

1.    Excluding Schedule Five (Extinguished Areas) and Schedule Six (Excluded Area), the Determination Area comprises the following land or waters:

(a)    Described in Schedule Three;

(b)    Described in Schedule Four;

(c)    Those areas within Schedule Eight (External Boundary of Determined Area and Extinguished Areas) and not otherwise described in this Schedule, comprising the beds, banks, subsoils and waters of any naturally occuring water body, provided that the underlying land has not been the subject of:

(i)    a previous exclusive possession act; or

(ii)    extinguishment at common law; and

(d)    The following areas: