FEDERAL COURT OF AUSTRALIA

Western Bundjalung People v Attorney General of New South Wales [2018] FCA 970

ORDERS

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 to the court appropriate to do so by consent of the parties and pursuant to sections 87 and 94A of the Native Title Act 1993 (Cth):

THE COURT NOTES THAT:

A.    On 19 December 2011, the Applicant made a native title determination application in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth) to the Federal Court of Australia (proceeding NSD 2300 of 2011) (the “Application”).

B.    On 29 August 2017, a part of the land and waters within the external boundaries of the Application was determined by Jagot J at a Federal Court Hearing at Tabulam, New South Wales (Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992) (the “Part A Determination”). In that Part A Determination, the Court noted that the parties “agree that, at this stage, there be no approved determination of native title in relation to the remaining land or waters within the external boundary of the Application (the “Part B Area”)”. The land and waters in the Part B Area was described in Schedule Four of the Part A Determination.

C.    The parties have reached an agreement as to the terms of a further determination to be made by consent in relation to the Part B Area (the “Part B Determination Area”), being that:

(i)    native title exists in relation to a part of the Part B Determination Area (the “Part B Native Title Area”),

(ii)    native title has been extinguished in relation to another part of the Part B Determination Area (the “Part B Extinguished Area”).

D.    The terms of the agreement involve the making of orders by consent for a determination pursuant to section 87, and in accordance with section 94A, of the Native Title Act 1993 (Cth).

E.    Pursuant to section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed a Minute of Proposed Consent Determination of Native Title which reflects the terms of the agreement.

F.    The Applicant has nominated Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 pursuant to section 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the common law holders.

G.    Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 has consented in writing to hold the determined 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 Native Title Act 1993 (Cth).

THE COURT ORDERS THAT:

1.    There be a determination of native title in the terms set out below (the “Part B Determination”).

2.    The Part B Determination shall take effect upon the date on which the later of the agreements described in paragraphs 1 and 2 in Schedule Three of the Part B Determination is registered on the Register of Indigenous Land Use Agreements, pursuant to the Native Title Act 1993 (Cth).

3.    In the event that the agreements referred to in paragraph 2 above are not registered on the Register of Indigenous Land Use Agreements within 12 months of the date of the Part B Consent Determination, or at such later time as this Court may order, the matter is to be listed before the Court for further directions.

4.    The Applicant or the Attorney General have liberty to apply on 14 days’ notice to the Court if either party considers it unlikely that the Western Bundjalung Settlement ILUA will be:

(a)    varied to incorporate the relevant land and waters in Part 3 of Schedule One of the Part B Determination; or

(b)    registered on the Register of Indigenous Land Use Agreements within 12 months of the date of this Order.

5.    On the Part B Determination taking effect, Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 shall hold the determined native title in trust for the common law holders pursuant to section 56(3) of the Native Title Act 1993 (Cth) and is to:

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

(b)    perform the functions set out in section 57(1) of the Native Title Act 1993 (Cth) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

6.    There be no order as to costs.

THE COURT DETERMINES THAT:

1.    Native title exists in the Part B Native Title Area described in Schedule One and depicted in the maps at Annexure A.

2.    Native title is extinguished in the Part B Extinguished Area described in Schedule Two and depicted in the maps at Annexure A.

3.    To the extent of any inconsistency between the written description in Schedules One and Two and the respective maps at Annexure A to this Part B Determination, the written description prevails.

4.    Schedule One is to be read subject to Schedule Two.

Native title holders

5.    Native title in relation to the Part B Native Title Area is held by the Western Bundjalung People who comprise all the descendants of the following apical ancestors:

(a)    Herbert ‘Hunter’ Avery (who was born in Grafton circa 1881),

(b)    King Bobby (who was born circa 1840s),

(c)    Queen Jinny Little (who was born in Yugilbar in 1840),

(d)    Richard ‘Old Dick’ Donnelly (who was born in Timbarra circa 1870),

(e)    Jane ‘Jenny’ ‘Barbin Boatshed’ Brown (who was born in Baryulgil circa 1855),

(f)    Thomas ‘Tom’ Donnelly (who was born in Tenterfield circa 1877),

(g)    Thomas Gordon (who was born in Copmanhurst in 1870),

(h)    Ethel Bawden (who was born in Yugilbar in 1884),

(i)    Grace Kelly also known as Grace Lardner (who was born on the Orara River circa 1876),

(j)    Mariah Little (who was born in Baryulgil circa 1855),

(k)    William ‘Billy’ ‘Charles’ Charles (who was born circa 1860),

(l)    Harry Joseph Mundine (who was born in Tabulam in 1868),

(m)    Teresa Agnes ‘Ponjam’ Derry (who was born in Tabulam in 1872),

(n)    Mick ‘Bucky’ Robinson (who was born in Timbarra/Tenterfield circa 1859),

(o)    Kate Gaton (who was born circa 1870),

(p)    Matilda ‘Tilly’ Gaton (who was born in Yugilbar in 1879),

(q)    Harry Walker (who was born circa 1850),

(r)    Jenny ‘Ginny’ Pearson (who was born circa 1860),

(s)    Alice Tindal also known as Alice Brown (who was born in Lionsville circa 1870), and

(t)    William Pearson (who was born in Gordon Brook in 1872),

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

Nature and Extent of Non-Exclusive Native Title Rights and Interests

6.    Subject to paragraphs 8 and 9, the nature and extent of the native title rights and interests in relation to the Part B Native Title Area are the non-exclusive native title rights to:

(a)    enter, traverse across and remain on the land;

(b)    camp on, erect shelters and live but not to permanently camp on, possess or occupy the land;

(c)    take and use the water for personal, domestic, 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;

(d)    gather and use the traditional natural resources (other than water) 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;

(e)    hunt;

(f)    fish;

(g)    light fires for domestic purposes, but not for the clearance of vegetation;

(h)    engage in cultural activities including:

(i)    visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity;

(ii)    conducting and participating in ceremonies and rituals including in relation to birth and death;

(iii)    holding cultural gatherings; and

(iv)    passing on knowledge about the physical and spiritual attributes of places of importance; and

(i)    be accompanied 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.

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 described in paragraph 6 do not confer:

(a)    any right of possession, occupation, use and enjoyment of the land or waters in the Part B Native Title Area to the exclusion of all others;

(b)    any right to control public access to or use the land or waters in the Part B Native Title Area.

9.    The native title rights and interests in relation to the land or waters in the Part B Native Title 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 Native Title Holders; and

(c)    the terms and conditions of the agreements referred to in Schedule Three.

The nature and extent of any Other Interests

10.    The Other Interests in relation to the Part B Native Title Area are described in Schedule Four.

Relationship between native title rights and interests and Other Interests

11.    Subject to paragraphs 12 and 13, and except as otherwise provided by law, the relationship between the native title rights and interests in relation to land or waters in the Part B Native Title Area and the Other Interests, described in Schedule Four, in relation to those areas 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 Interest; 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.

12.    The relationship between the native title rights and interests in relation to the land or waters described in Part 2 of Schedule One (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies) and the Other Interests described at item 1(b) of Schedule Four is that:

(a)    the Other Interests continue to have effect;

(b)    the non-extinguishment principle in section 238 of the Native Title Act 1993 (Cth) applies to the grant or vesting of the Other Interests or any prior interest in relation to the area in accordance with section 47A(3)(b) of the Native Title Act 1993 (Cth);

(c)    the native title rights and interests continue to exist in their entirety, but have no effect in relation to the Other Interests;

(d)    the Other Interests, and any activity that is required or permitted by or under and done in accordance with the Other Interests, may be exercised and enjoyed in their entirety notwithstanding the existence of the native title rights and interests;

(e)    the native title rights and interests may not be exercised on land or waters the subject of the Other Interests while those Other Interests exist;

(f)    if the Other Interests or its effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; and

(g)    if the Other Interests or its effects are removed to an extent or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

13.    The relationship between the native title rights and interests in Lot 409 DP 48826 (ID2965) and any land or waters which are transferred to an Aboriginal Land Council under the Aboriginal Land Rights Act 1983 (NSW) after the date of the Part B Determination as a result of a claim lodged under that Act on or after 28 November 1994 and the Other Interests described in Item (1)(c) of Schedule Four is that:

(a)    pursuant to section 36(9) of the Aboriginal Land Rights Act 1983 (NSW), the Other Interests referred to in this paragraph shall be subject to any native title rights and interests existing in relation to the land or waters immediately before the transfer; and

(b)    the land or waters may only be dealt with by the Aboriginal Land Council in accordance with the Aboriginal Land Rights Act 1983 (NSW) and the Native Title Act 1993 (Cth).

14.    Pursuant to section 47B of the Native Title Act 1993 (Cth) any extinguishment effected by the creation of prior interests within those areas described in Part 3 of Schedule One is to be disregarded.

Definitions

15.    In this Part B Determination, unless the contrary intention appears:

‘Aboriginal Land Council’ means New South Wales Aboriginal Land Council and any Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983 (NSW) for a Local Aboriginal Land Council area, within the meaning of that Act, that is within the Part B Native Title Area, and includes, Grafton Ngerrie Local Aboriginal Land Council and Jana Ngalee Local Aboriginal Land Council.

‘external boundary of the Application’ means the external boundary of the native title determination application filed by the Western Bundjalung people in Federal Court of Australia proceeding NSD 2300 of 2011, taking into account the Part A Determination and section 64(1B) of the Native Title Act 1993 (Cth).

‘land’ has the same meaning as in the Native Title Act 1993 (Cth).

‘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 Holders’ means the persons described in paragraph 5.

‘native title rights and interests’ means the rights and interests described in paragraph 6.

‘Ngullingah Jugun (Our Country) Aboriginal Corporation’ means Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

‘Other Interests’ means the rights and interests described in Schedule Four.

‘Part B Determination Area’ means the Part B Native Title Area together with the Part B Extinguished Area

‘Part B Extinguished Area’ means the land or waters described in Schedule Two.

‘Part B Native Title Area’ means the land or waters described in Schedule One.

‘waters’ has the same meaning as in the Native Title Act 1993 (Cth).

‘Western Bundjalung People’ has the same meaning as Native Title Holders.

‘Western Bundjalung Settlement ILUA’ means the Indigenous Land Use Agreement under section 24CA of the Native Title Act 1993 referred to at paragraph 1 of Schedule Three.

16.    If a word or expression is not defined in these orders or this Part B Determination, but is defined in the Native Title Act 1993 (Cth) or the Native Title (New South Wales) Act 1994 (NSW), then it has the meaning given to it in the Native Title Act 1993 (Cth) or the Native Title (New South Wales) Act 1994 (NSW), whichever is relevant.

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

SCHEDULE ONE - PART B NATIVE TITLE AREA

Description of the Part B Native Title Area

The Part B Native Title Area comprises all the land or waters described in Parts 1, 2, and 3 below and depicted at Annexure A.

Part 1 – Land or waters in the Part B Native Title Area granted under the Aboriginal Land Rights Act subject to Native Title

The land or waters described as Lot 409 DP 48826 (ID2965) and depicted on the map at Annexure A to this Part B Determination and coloured Green (with hatching running diagonally from left to right).

    Part 2 – Land or waters to which section 47A of the Native Title Act 1993 (Cth) applies

All the land or waters described in the following table and depicted on the maps at Annexure A to this Part B Determination and coloured Green (with hatching running diagonally from right to left).

Part 3 – Land or waters to which section 47B of the Native Title Act 1993 (Cth) applies

All the land or waters described in the following table and depicted on the maps at Annexure A to this Part B Determination and cross hatched in Green.

SCHEDULE TWO – PART B EXTINGUISHED AREA

Description of Part B Extinguished Area

(a)    any land or waters which would otherwise be within the Part B Native Title Area on which there is or has been constructed or established valid public works (including any adjacent land or waters as described in section 251D of the Native Title Act 1993 (Cth)) 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 on or before 23 December 1996;

(d)    the beds and waters of any watercourse (or part thereof, including all shingle, gravel, sand-beds and alluvium), within any part of the areas listed in Schedule One, which by application of the ad medium filum aquae rule, is part of a freehold estate; and

(e)    the land or waters described below and hatched in red on the maps at Annexure A to this Part B Determination to the extent they fall within the external boundary of the Application:

SCHEDULE THREE – AGREEMENTS

1.    The Indigenous Land Use Agreement under section 24CA of the Native Title Act 1993 (Cth) made between Tim Torrens, David Mundine, Kathy Malera-Bandjalan, Bronwyn Bancroft, Leonard Gordon, David Walker, Terrence Robinson, Andrew Donnelly, Gary Brown, Graeme Walker, as the registered native title claimant in relation to land or waters in the Application Area, for and on behalf of the Western Bundjalung People, Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 and the State of New South Wales which includes the land referred to Consent Determination Orders of 29 August 2017 and in Part 3 of Schedule One of this Consent Determination.

2.    The Indigenous Land Use Agreement under section 24CA of the Native Title Act 1993 (Cth) made between Tim Torrens, David Mundine, Kathy Malera-Bandjalan, Bronwyn Bancroft, Leonard Gordon, David Walker, Terrence Robinson, Andrew Donnelly, Gary Brown, Graeme Walker, as the registered native title claimant in relation to the land or waters within the external boundary of the Application, for and on behalf of the Western Bundjalung People, Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 and the Grafton Ngerrie Local Aboriginal Land Council.

3.    Any other Indigenous Land Use Agreement, which, after this Part B Determination is made, is registered on the Register of Indigenous Land Use Agreement in relation to any land or waters in the Part B Native Title Area within the Part B Determination Area.

SCHEDULE FOUR - OTHER INTERESTS IN THE PART B NATIVE TITLE AREA

The Other Interests in the Part B Native Title Area, as they exist at the date of this Part B Determination, are as follows:

1.     Aboriginal Land Council interests

(a)    The rights and interests of Grafton Ngerrie Local Aboriginal Land Council pursuant to undetermined Aboriginal land claims made under section 36 of the Aboriginal Land Rights Act 1983 (NSW) in respect of certain lands within the Part B Native Title Area, including the right to have each such claim determined according to law and, subject only to a determination that the land is claimable Crown land as defined in section 36(1) of that Act, the right to the transfer of an estate in fee simple pursuant to that Act.

(b)    The rights and interests of Grafton Ngerrie Local Aboriginal Land Council listed in the table below as the holder of a freehold title including the rights of Grafton Ngerrie Local Aboriginal Land Council to use, manage, control, hold or dispose of, or otherwise deal with, land vested in it in accordance with the Aboriginal Land Rights Act 1983 (NSW) over the areas of land or waters in the Part B Native Title Area:

and

(c)    The rights of Grafton Ngerrie Local Aboriginal Land Council in relation to land that is granted subject to native title pursuant to section 36(9) of the Aboriginal Land Rights Act 1983.

2.    Reserves

(a)    The rights of State, Local Government and other organisations or persons who have the care, control and management of any reserves within the Part B Native Title Area subject to the laws of the State of New South Wales and of the Commonwealth; and

(b)    The rights of persons entitled to access and use reserves within the Part B Native Title Area for the purposes for which they are reserved, subject to any statutory limitations upon those rights.

3.    Mining and Petroleum Interests

(a)    The rights of the holders of any mining interests.

(b)    The rights of holders of any petroleum interests.

4.    Water Interests

(a)    The rights of any holder as at the date of this Part B Determination of any licences or permissive occupancies granted under the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW).

5.    Fishing Interests

(a)    The rights of the holders from time to time of leases, licences and permits granted or issued under the Fisheries Management Act 1994 (NSW) and Regulations made under that Act.

(b)    Other rights and interests under the care, management and control of the Department of Primary Industry – Fisheries subject to the laws of the State of New South Wales and of the Commonwealth.

(c)    The rights of the Department of Primary Industry - Fisheries, and employees or agents of the same under the Fisheries Management Act 1994 (NSW) and Regulations made under that Act.

6.    Crown Lands Interests

(a)    The rights of the holders from time to time of leases, licences and permits granted or issued under the Crown Lands Act 1989 (NSW) and Regulations made under that Act.

(b)    Other rights and interests under the care, management and control of the New South Wales Department of Industry – Lands subject to the laws of the State of New South Wales and of the Commonwealth.

(c)    The rights of the New South Wales Department of Industry – Lands, and employees or agents of the same under the Crown Lands Act 1989 (NSW) and Regulations made under that Act.

7.    Local Government Interest

The rights and interests of Local Councils as councils constituted under the Local Government Act 1993 (NSW).

8.    Other interests generally

(a)    Rights and interests, including licences 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)    So far as is confirmed pursuant to section 18 of the Native Title (New South Wales) Act as at the date of this Part B Determination, any existing public access to and enjoyment of:

(i)    waterways;

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

(iii)    travelling stock reserves; and

(iv)    areas that were public places at the end of 31 December 1993.

(e)    The rights of:

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

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

(iii)    an employee, agent or instrumentality of any Local Government Authority,

to access the Part B Native Title Area and carry out actions as required in the performance of his/ her or its statutory or common law duty.

ANNEXURE a

REASONS FOR JUDGMENT

JAGOT J:

1    On 19 December 2011, the Western Bundjalung People claimed native title over land and waters in the Northern Rivers area of New South Wales between Grafton, Tenterfield and Casino under ss 13(1) and 61 of the Native Title Act 1993 (Cth) (the NTA).

2    On 29 August 2017, I made a determination of native title over the majority of the land: Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992.

3    At that time, I noted the parties’ agreement that there be no determination of native title “in relation to the remaining land or waters within the external boundary of the Application (the ‘Part B Area’)”.

4    The Part B Area involves land excluded from the earlier determination because of then unresolved issues concerning the interests of Aboriginal Land Councils in those parcels. Aboriginal Land Councils have an important role in New South Wales. The issues which arise under the Aboriginal Land Rights Act 1983 (NSW), and its relationship with the NTA, are by no means straightforward. Complexity often demands compromise and that compromise has now been achieved.

5    For this, it is right to acknowledge the combined efforts of the parties, and I do so. I have no doubt that focus, hard work and a willingness for lawyers to give tough advice and parties to be willing to make tough decisions has been necessary to get to this point. I do not underestimate the toll that work of this kind can take, but that is what is required to enable the NTA to operate as intended by our Parliament, in part, to right grievous injustices to which Australia’s indigenous peoples have been subject and for which they continue to pay the price today.

6    As a result of these tough but necessary compromises, the remaining claim of the Western Bundjalung People in respect of the Part B Area is also to be resolved today by recognition of their native title rights and interests in connection with that land under their traditional laws and customs.

7    As the joint submissions of the parties record, the resolution which has been reached involves a balance being struck between the interests of the Western Bundjalung People, the Aboriginal Land Councils and the State. Compromises of this kind, no matter how difficult, are the essence of the statutory scheme for which the NTA provides.

8    I should also say, for my own part, to receive the necessary material from the parties in a relatively timely manner, and to see immediately that all of the material has been clearly and cogently drafted, is particularly gratifying. The importance of the necessary kind of clear-thinking and timeliness being brought to bear in this regard to the Court’s functioning, and thus the public interest, should also be recognised.

9    As a result of the clear and cogent material provided, I can say this – I accept the joint submissions of the parties and I am satisfied that it is appropriate that a determination of native title be made in respect of the Part B Area. The procedural and substantive requirements enabling the making of a determination reflecting the agreement of the parties have been met. I am aware that the effect of the determination depends on the registration of various indigenous land use agreements. Based on the joint submissions, I accept that these agreements are an important part of the compromise that has been reached by the parties freely and with the benefit of advice.

10    Ultimately, of course, today is about the Western Bundjalung People, and the final recognition by the laws of Australia of their traditional rights and interests continuing to connect them to their land under their traditional laws and customs. To achieve that recognition of what was and has always been, I note the agreed matters and make the orders as proposed by consent.

Associate:

Dated:    27 June 2018

SCHEDULE OF PARTIES