FEDERAL COURT OF AUSTRALIA

Williams on behalf of the Gumbaynggirr People and Attorney General of New South Wales [2019] FCA 1915

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 ss 87(2) and 94A of the Native Title Act 1993 (Cth),

THE COURT NOTES THAT:

The Original Application (Proceeding NSD 6054 of 1998)

A.    On 16 December 1996, Stanley Marshall, Eileen Marshall, Phoebe Mumbler and Jessica Williams made a native title determination application on behalf of the Gumbaynggirr People in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth) to the Federal Court of Australia (proceeding NSD 6054 of 1998) (the “Original Application”).

B.    The Original Application area included:

(1)    part of the land and waters of what is now known as the Gaagal Wanggaan (South Beach) National Park; and

(2)    the land and waters of Gumma Peninsula and the Islands.

C.    The applicant for the Original Application, the Attorney General of New South Wales (“Attorney General”) and Unkya Local Aboriginal Land Council (being the Second Respondent in the Original Application) entered into an agreement under section 87 of the Native Title Act 1993 (Cth) (the “Original Section 87 Agreement”) allowing for a determination of native title to be made in the Original Application with the following relevant conditions:

(1)    the Original Application was to be amended to explicitly exclude and/or remove Lots 554, 555, 556, 557, 558 and559 in Deposited Plan 1072228 (otherwise referred to in the Original Section 87 Agreement as the “Gumma Peninsula and Islands”); and

(2)    the respondents to the Original Application would not oppose the making of an application for a determination of native title by the Gumbaynggirr People over the Gumma Peninsula and Islands if:

(i)    such an application was made within two years of the determination of the Original Application; and

(ii)    the native title rights and interests claimed were in the same form as the consent determination in the Original Application.

D.    The Original Application was amended on 8 August 2014 to give effect to the agreement.

E.    On 15 August 2014, Justice Jagot made orders in relation to the Original Application giving effect to the Original Section 87 Agreement and determining native title by consent in Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851. The approved determination of native title included an order that the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC is to hold the determined native title on trust for the common law holders.

The Gumma Peninsula and the Islands Application (Proceedings NSD 1350 of 2016)

F.    In accordance with the Original Section 87 Agreement, on 15 August 2016 Barry Phyball, Peter Gary Williams, Clive Joseph Robin Bryant, Colin Jarrett, Bridget Jarrett, Michele Donovan, Belinda Donovan and Annika Rotumah on behalf of the Gumbaynggirr People made an application for a determination of native title over the Gumma Peninsula and Islands under sections 13(1) and 61 of the Native Title Act 1993 (Cth) to the Federal Court of Australia (proceeding NSD1350 of 2016) (this “Application”).

G.    In 2017 Barry Phyball, a senior Gumbaynggirr Elder and one of the persons comprising the applicant, passed away. In October 2019, the Gumbaynggirr People native title claim group authorised a new applicant for the Application, being Peter Gary Williams, Clive Joseph Robin Bryant, Colin Jarrett, Bridget Jarrett, Michele Donovan, Belinda Donovan and Annika Rotumah (“the Applicant”), and in November 2019 the Court made orders under section 66B of the Native Title Act 1993 (Cth) replacing the applicant for the Application.

H.    The parties have reached an agreement as to the terms of a determination to be made by consent in relation to the land or waters within the external boundaries of the Application, being a determination that:

(1)    native title exists in relation to a part of the Application Area (the “Native Title Area”); and

(2)    native title has been extinguished in relation to another part of the Application Area (the “Extinguished Area”).

I.    The parties’ consent is subject to terms set out in a separate agreement made under section 87 of the Native Title Act 1993 (Cth), signed by the parties and filed in the proceedings.

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

K.    Pursuant to section 87(1) 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 that agreement.

L.    The Applicant has nominated Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC 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.

M.    Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC has consented in writing to hold, in accordance with the regulations, 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 “Determination”);

2.    On the Determination taking effect, Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 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:

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

(ii)    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).

3.    There be no order as to costs.

THE COURT DETERMINES THAT:

1.    Native title exists in the Native Title Area described in Schedule One and depicted in green hatching in the map attached to Schedule One.

2.    Native title is extinguished in the Extinguished Area described in Schedule Two and depicted in red hatching in the map attached to Schedule Two.

3.    To the extent of any inconsistency between the written descriptions in Schedules One and Two and the corresponding map attached to the Schedule, the written description prevails.

Native title holders

4.    Native title in the Native Title Area is held by the Gumbaynggirr People who are Aboriginal persons who are:

(a)     The biological descendants of:

(i)    King Ben Bennelong;

(ii)    Maggie Buchanan and Davy Cowling;

(iii)    Biddy, the mother of Lavina Duncan (Bina Whaddy);

(iv)    Fanny Purrapine, the mother of Lily Kelly and Hilda Kelly Robinson;

(v)    Darby Kelly;

(vi)    the father of Maggie Kelly’s mother Biddy;

(vii)    William “Old Bill” Dotti;

(viii)    John “Jack” Dotti;

(ix)    Lucy Flanders;

(x)    Dave Ballangarry;

(xi)    Robert Walker and Louise Linwood;

(xii)    John “Jack” Long;

(xiii)    Bridget “Biddy” Briggs Needam;

(xiv)    Mary Briggs and Fred Briggs;

(xv)    Susan, mother of Charles Jarrett Snr;

(xvi)    Rose Taylor;

(xvii)    Charles Layton;

(xviii)    Mick McDougall;

(xix)    Clara Skinner;

(xx)    Sylvie Craig;

(xxi)    Elizabeth “Kitty” Campbell/Cameron (known as Elizabeth Blakeney);

(xxii)    Emily Sutton;

(xxiii)    Fred Hookey;

(xxiv)    Nobby Neville;

(xxv)    Mary Jane Ferguson;

(xxvi)    Billy Lardner Jnr;

(xxvii)    King Bobby of Oban;

(xxviii)     the parent of Charlie Whitton and Lucy Larrigo (nee Whitton);

(xxix)    Walter Smith and Stella Jane Davis;

(xxx)    Jane Gard/Maskey; and

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

(c)    persons who have been otherwise incorporated, or who are direct descendants of a person who has been otherwise incorporated, as a member of the Gumbaynggirr People and who identify as and are accepted as a Gumbaynggirr person, in accordance with Gumbaynggirr laws and customs.

Nature and extent of native title rights and interests

5.    Subject to paragraphs 8 and 19, the nature and extent of the native title rights and interests held by the Gumbaynggirr People in the Native Title Area are the non-exclusive rights to use and enjoy the land and waters of the Native Title Area in accordance with Gumbaynggirr traditional laws and customs being:

(a)    the right to have access to and Camp on the Native Title Area;

(b)    the right to take and use waters on or in the Native Title Area;

(c)    the right to hunt and gather natural resources of the Native Title Area for personal, domestic and non-commercial communal use;

(d)    the right to take fish in the temporary waters occurring above the mean high water mark in the Native Title Area;

(e)    the right to do the following activities on the land:

(i)    conduct ceremonies;

(ii)    teach the physical, cultural and spiritual attributes of places and areas of importance on or in the land and waters; and

(iii)    to have access to, maintain and protect from physical harm, sites in the Native Title Area which are of significance to Gumbaynggirr People under their traditional laws and customs.

General qualifications on native title rights and interests

6.    The native title rights and interests referred to in paragraph 5 are exercised for personal, domestic and non-commercial communal purposes.

7.    Native title does not exist in:

(a)    minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2016 (NSW); and

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

8.    The native title rights and interests described in paragraph 5 do not confer:

(a)    Possession, occupation, use or enjoyment of the land or waters in the Native Title Area to the exclusion of all others; or

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

9.    The native title rights and interests in relation to the land or waters in the 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; and

(b)    the traditional laws acknowledged and traditional customs observed by the Native Title Holders.

The nature and extent of any Other Interests

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

Relationship between native title rights and interests and other rights and interests

11.    Subject to paragraph 12 and except as provided by law, the relationship between the native title rights and interests in relation to land or waters in the Native Title Area and the Other Interests described in Schedule Four 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 within the Native Title Area by the holders of the 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.

12.    The relationship between the native title rights and interests in relation to the land and waters described in Schedule One (being land and waters to which section 47A of the Native Title Act 1993 (Cth) applies) and the Other Interests described in paragraph 1 in Schedule Four (“Nambucca Heads Local Aboriginal Land Council’s Interests”) is that:

(a)    Nambucca Heads Local Aboriginal Land Council’s 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 Nambucca Heads Local Aboriginal Land Council’s Interests and 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 Nambucca Heads Local Aboriginal Land Council’s Interests;

(d)    Nambucca Heads Local Aboriginal Land Council’s Interests, and any activity that is required or permitted by or under and done in accordance with the Nambucca Heads Local Aboriginal Land Council’s 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 Nambucca Heads Local Aboriginal Land Council’s Interests while Nambucca Heads Local Aboriginal Land Council’s Interests exist;

(f)    if Nambucca Heads Local Aboriginal Land Council’s Interests or their effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; and

(g)    if Nambucca Heads Local Aboriginal Land Council’s Interests or their 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.

Definitions

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

“Application” means the native title determination application filed with the Federal Court of Australia by the Applicant in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth) and given proceedings number NSD 1350 of 2016.

“Application Area” means the land and waters subject to the native title determination application filed by the Gumbaynggirr People in Federal Court of Australia proceeding NSD 1350 of 2016.

“Camp” means to stay on the Native Title Area for temporary periods. Tents or other like structures are permitted. It does not include the right to permanently reside or build permanent structures or fixtures.

“external boundaries of the Application” means the boundary of the native title determination application filed by the Gumbaynggirr People in Federal Court of Australia proceeding NSD 1350 of 2016 the perimeter of the land and waters described in Schedule Three.

“Extinguished Area” means the land and waters described in Schedule Two.

“Gumbaynggirr People” has the same meaning as Native Title Holders.

“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 Area” means the land and waters described in Schedule One.

“Native Title Holders” means the persons described in paragraph 4.

“Native title rights and interests” means the native title rights and interests described in paragraph 5.

“non-extinguishment principle” has the same meaning as section 238 of the

Native Title Act 1993 (Cth).

“Other Interests” means the rights and interests described in Schedule Four.

“Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation” means the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth).

“waters” has the same meaning as in the Native Title Act 1993 (Cth).

14.    If a word or expression is not defined in these orders or this Determination, but is defined in the Native Title Act 1993 (Cth) or 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 – NATIVE TITLE AREA

The Native Title Area is made up of:

Description of Native Title Area

Land and waters in the Native Title Area to which section 47A of the Native Title Act 1993 (Cth) applies are all the land or waters described in the following list and depicted on the Schedule One map hatched in green:

(a)    Lot 555 in DP 1072228;

(b)    Lot 557 in DP 1072228;

(c)    Lot 558 in DP 1072228; and

(d)    Lot 559 in DP 1072228.

SCHEDULE ONE MAP

SCHEDULE TWO – EXTINGUISHED AREA

Description of Extinguished Area

The land and waters on which native title has been extinguished are all the land or waters described in the following list and which are depicted on the Schedule Two map hatched in red:

(a)    Lot 554 in DP 1072228; and

(b)    Lot 556 in DP 1072228.

SCHEDULE TWO MAP

SCHEDULE THREE – EXTERNAL BOUNDARIES OF THE APPLICATION

The Application Area covers all the land and waters within the external boundary of land described as:

(a)    Lot 554 in DP 1072228;

(b)    Lot 555 in DP 1072228;

(c)    Lot 556 in DP 1072228;

(d)    Lot 557 in DP 1072228;

(e)    Lots 558 in DP 1072228; and

(f)    Lot 559 in DP 1072228.

Note:     Collectively, this area is also known as the Gumma Peninsula and Islands.

SCHEDULE FOUR – OTHER INTERESTS IN THE NATIVE TITLE AREA

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

1.    Nambucca Heads Local Aboriginal Land Council Interests

The rights and interests of the Nambucca Heads Local Aboriginal Land Council in the land within the Native Title Area, as the holder of estates in fee simple pursuant to the Aboriginal Land Rights Act 1983 (NSW) in relation to:

(a)    Lot 555 in DP 1072228;

(b)    Lot 557 in DP 1072228;

(c)    Lot 558 in DP 1072228; and

(d)    Lot 559 in DP 1072228.

2.    Electricity and Energy Supply Interests

(a)    The rights and interests of an electricity distributor within the meaning of the Energy Services Corporations Act 1995 (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 facilities for the transmission of electricity and other forms of energy and associated infrastructure situated on the Native Title Area including but not limited to the right to enter the Native Title Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with existing facilities and infrastructure.

(b)    The rights and interests of:

(i)    a network operator within the meaning of the Electricity Supply Act 1995 (NSW); and

(ii)    for the purposes of any privatisation transaction, any lessor or lessee of a transmission system or person who owns or is authorised to control or operate a transmission system, to exercise functions, powers or rights in accordance with the laws of the State of New South Wales or of the Commonwealth as operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure situated on the Native Title Area including but not limited to the right to enter the Native Title Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with existing facilities and infrastructure.

3.    Local Government Interests

The rights and interests of Nambucca Shire Council as a council constituted under the Local Government Act 1993 (NSW).

4.    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 1994 (NSW) as at the date of the 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 Native Title Area and carry out actions as required in the performance of his/her or its statutory or common law duty.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    These proceedings under the Native Title Act 1993 (Cth) relate to an Application for a native title determination made on 15 August 2016. On 7 November 2019 an agreement under s 87 of the Native Title Act was filed in this Court.

2    The area claimed in the Application is located on the mid-north coast of New South Wales, in and around the Gumma Peninsula. The closest township is Nambucca Heads, which is across the Nambucca River to the immediate north of the Application area. To the west of the Gumma Peninsula is the Nambucca River and to the east Warrell Creek. The Gumma Islands are all situated on the Nambucca River. The Application area comprises six parcels of land and is approximately 1.4737 square kilometres.

3    The land and waters within the external boundaries of this native title determination application comprise the following six parcels of land:

(a)    Lot 554 in Deposited Plan 1072228;

(b)    Lot 555 in Deposited Plan 1072228;

(c)    Lot 556 in Deposited Plan 1072228;

(d)    Lot 557 in Deposited Plan 1072228;

(e)    Lot 558 in Deposited Plan 1072228; and

(f)    Lot 559 in Deposited Plan 1072228.

4    Three of the above parcels, (Lot 557, Lot 558 and Lot 559) form part of the Gumma Peninsula. The other three parcels of land are sand islands adjacent to the Gumma Peninsula on the Nambucca River.

5    The circumstances giving rise to the application are that the land subject to the present proceedings was excised from an earlier native title determination application (proceedings NSD 6054 of 1998). That native title determination application was determined by the Court with the consent of the parties on 15 August 2014 by way of a s 87 agreement: Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851. See further [12] of these reasons below.

6    In joint written submissions on behalf of the applicant and the first respondent, dated 7 November 2019, those parties submit that they seek to honour the s 87 agreement in Phyball through the determination of native title in these proceedings so that the applicant’s native title will be recognised across the whole of the area as asserted in their original native title determination application.

7    The description of the native title holders in this Application is identical to those described in: (a) Phyball; (b) Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459; and (c) Pacey on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1916, in which a consent determination hearing was held at Sydney on the same day as these proceedings.

8    On 4 November 2019, I made an order by consent, pursuant to s 66B(l)(a)(ii) of the Native Title Act, that Colin Jarrett, Peter (Gary) Williams, Michele Donovan, Bridget Jarrett, Clive Joseph Robin Bryant, Annika Rotumah and Belinda Donovan jointly replace the applicant. That order was sought following the passing of Barry Phyball.

9    The respondents are the Attorney General of New South Wales as the State Minister for New South Wales; Nambucca Heads Local Aboriginal Land Council; and Austone Pty Limited.

Evidence

10    As I have mentioned, an agreement under s 87 has been filed. The parties have also filed two affidavits, one affirmed by Janet Rosemary Moss, solicitor employed in the office of the Crown Solicitor of New South Wales, on 7 November 2019, and one affirmed by Mishka Jade Holt, the Principal Solicitor of NTSCORP, also on 7 November 2019.

11    The affidavit of Ms Moss concerned the processes by which the Attorney General considered the connection material and tenure and how the present proceedings were resolved. Ms Moss also provided the background of the relationship between the earlier application (NSD 6054 of 1998) and the present native title determination application.

12    Ms Moss set out [9]-[12] of the earlier, 4 August 2014, s 87 agreement as follows:

9.    The Parties acknowledge that, in the interests of reaching a timely resolution to this proceeding, the Applicant has agreed to amend the claim boundaries to confirm the exclusion and/or remove Gumma Peninsula Lots 554, 555 and 556 in DP1072228 and the Gumma Islands Lots 557, 558 and 559 in DP1072228.

10.    The Parties acknowledge that the Gumbaynggirr People assert that they hold native title rights and interests in relation to the Gumma Peninsula Lots 554, 555 and 556 in DP1072228 and the Gumma Islands Lots 557, 558 and 559 in DP1072228 and that they reserve their right to file a native title determination application in respect of those areas within 2 years of the date of this agreement.

11.    The First and Second Respondents agree that they will not oppose the making of such an application on the basis of any estoppel or abuse of process based on prior proceedings.

12.    Further, the First and Second Respondents agree that, in the event of a native title determination application being made in relation to the Gumma Peninsula and/or the Gumma Islands by the Gumbaynggirr People (that is over part or all of Lots 554 to 559 in DP1072228), they will not require any further connection evidence than that which was provided in NSD6054/1998 to show connection to that land, provided that:

(a)    any such application is made within 2 years of the date of the Consent Determination; and

(b)    the native title rights and interests claimed are in same form as the Consent Determination.

13    Ms Moss deposed that the parcels of land described in the earlier s 87 Agreement at [9] comprised the whole of the land and waters the subject of the present native title determination application. Thus, Ms Moss continued, the claim area of the earlier application, in its original form, included the land or waters that are the subject of this native title determination application (otherwise referred to by Ms Moss as “Gumma Peninsula and Islands”), prior to that application being amended. That earlier application was amended on 11 August 2014 to give effect to the above passages of the earlier s 87 agreement.

14    Ms Moss also deposed that the approved determination of native title in relation to the earlier application included an order that the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 was to hold the determined native title on trust for the common law holders.

15    In the balance of her affidavit, Ms Moss deposed that the notification period and this matter commenced on 22 February 2017 and ended on 22 May 2017 and that there were no overlapping or competing native title determination applications over any part of the land or waters within the external boundaries of this application.

16    Ms Moss deposed that the connection material provided by the applicant was detailed in her affidavit affirmed on 4 August 2014 at [62]-[66], which affidavit was read, without objections, when the earlier application was determined. I shall treat that 2014 affidavit as being before me on this application. The process by which the Attorney General considered that the applicant’s connection material in the earlier application was sufficiently credible is detailed in Ms Moss’s 2014 affidavit at [7]-[60]. At that time, as detailed at [13] above, the present claim area was included within the earlier application and so was considered as part of the assessment.

17    Ms Moss deposed that as the applicant commenced this native title determination application within the period specified in the earlier s 87 agreement and complied with the terms of that agreement, there was no requirement for the Attorney General to reassess the applicant’s connection material in order to determine whether it was sufficiently credible. This course was considered to be the most prudent, as well as the quickest, most inexpensive and efficient means of facilitating the just resolution of these proceedings.

18    Ms Moss deposed that the proposed resolution of these proceedings included the land and waters the subject of this proceeding and the earlier application.

19    Ms Moss deposed that the first respondent considered that the s 87 agreement represented a practical compromise between the differing positions of all the parties which accounted for access and continued use.

20    I accept the evidence of Ms Moss.

21    Ms Holt’s affidavit deals first with the meeting on 18 and 19 October 2019. On those dates, NTSCORP convened a meeting of members of the Gumbaynggirr People native title claim group at the Valla Beach Tourist Park at 1 Regatta Drive, Valla Beach, New South Wales.

22    The meeting was convened to consider and make decisions in relation to a number of matters, including:

(a)    the authorisation of a new applicant for the application on the basis that Barry Phyball, one of the persons jointly comprising the applicant had passed away;

(b)    the authorisation of the proposed determination for the application; and

(c)    nominating Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC to be the prescribed body corporate to hold Gumbaynggirr People’s native title rights and interests, once determined, on trust.

23    Ms Holt deposed to the notification of, preparation for and conduct of the meeting, which she attended along with Ms Natalie Rotumah (NTSCORP CEO, also performing the functions of Community Facilitator for this application), Dr Ken Lum (NTSCORP Manager Research), Dr Nicholas Skilton (NTSCORP Research Historian), and Tessa Sparks (NTSCORP Law Graduate). These staff assisted with the presentations and also with the logistical arrangements at the Meeting.

24    On 19 October 2019 the meeting was attended by approximately 45 Gumbaynggirr People native title claim group members.

25    At the meeting the following resolution was passed unanimously:

The Gumbaynggirr People native title claim group nominates the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 to hold the Gumbaynggirr People’s native title on trust and, following the determination of their native title, to perform the functions of a Registered Native Title Body Corporate set out in s 57(1) of the Native Title Act 1993 (Cth) and the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth).

26    The meeting also passed unanimously a resolution authorising the proposed s 87 agreement and consent determination for the application.

27    Ms Holt also gave evidence as to the Annual General Meeting of Members of the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC on 20 October 2019, at which she was present. On 5 November 2019, following the Annual General Meeting of Members, she received correspondence from Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC dated 5 November 2019 confirming that it:

(a)    accepted the nomination made by the Gumbaynggirr People native title claim group to hold their determined native title in trust for the common law holders pursuant to s 56(3) of the Native Title Act;

(b)    consented to be the prescribed body corporate for the purposes of s 57(1) of the Native Title Act; and

(c)    consented to perform the functions set out in s 57(1) of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

28    I accept Ms Holt’s evidence.

Consideration of the submissions of the applicant and the first respondent

29    The applicant and the first respondent submitted that the Court may make orders in accordance with the terms of the proposed consent determination, pursuant to s 87(2) of the Native Title Act, without holding a contested hearing. For the following reasons, I accept this submission.

30    I find that the following conditions have been met:

(a)    the notification period specified in s 66 of the Native Title Act has expired: s 87(1) of the Native Title Act;

(b)    an agreement has been reached between the parties on the terms of an order: s 87(1)(a) of the Native Title Act;

(c)    the agreement reached relates to the whole of the proceedings, a part of the proceedings or a matter arising out of the proceedings: s 87(1)(a)(i)-(iii) of the Native Title Act;

(d)    the terms of the agreement have been reduced to writing, signed by or on behalf of each of the parties, and filed with the Court: s 87(1)(b) of the Native Title Act; and

(e)    I am satisfied that orders in, or consistent with, the terms of the agreement would be within the power of the Court: s 87(1)(c) of the Native Title Act.

31    I also find that it is appropriate to make the orders proposed, and to do so without holding a hearing: ss 87(1A)(a) and (2) of the Native Title Act.

32    An order will be within the power of the Court if it is consistent with s 94A of the Native Title Act. That section requires the proposed orders to set out details of the matters mentioned in s 225 of the Native Title Act. I find that the proposed determination sets out each of those matters as required.

33    The applicant and the first respondent consider that the agreement to resolve proceedings by consent has been entered into freely, without duress, fraud or misrepresentation, referring to Nangkiriny v State of Western Australia [2002] FCA 660; 117 FCR 6 at [14]. All the parties to these proceedings have been legally represented and the applicant and the first respondent consider that the other parties have obtained, or had the opportunity to obtain, independent legal advice. Further, the parties have sought and obtained the benefit of Court annexed mediation to assist the parties to resolve issues in dispute without the need for judicial determination. The applicant and first respondent submitted that the parties have acted in good faith to reach a negotiated settlement of the proceedings. I accept these submissions.

34    The s 87 agreement requires:

(i)    the Applicant, the First Respondent, the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC, the Minister administering the Crown Land Management Act 2016 (NSW) and the Minister administering the National Parks and Wildlife Act 1974 (NSW) to negotiate an indigenous land use agreement which is intended to provide for the transfer of Lots 554 and 556 in Deposited Plan 1072228 to the RNTBC in exchange for:

(a)    the validation of certain classes of future acts in the Gaagal Wanggaan (South Beach) National Park; and

(b)    full and final compensation for any compensable past, intermediate or future acts in the Application Area;

(ii)    Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 and Austone Ply Ltd (the Third Respondent) have made a licence agreement in relation to ongoing operations on Lot 554 in Deposited Plan 1072228 which will come into effect when Lot 554 in Deposited Plan 1072228 is transferred Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC;

(iii)    Nambucca Heads Local Aboriginal Land Council (the Second Respondent) has agreed with Austone Pty Ltd (the Third Respondent) the terms of a licence agreement under which Austone Ply Ltd will have a right of access across Lot 555 in Deposited Plan 1072228, which licence agreement, when executed, will have effect when the licence referred to in sub-paragraph (b) has effect; and

(iv)    Nambucca Heads Local Aboriginal Land Council (the Second Respondent) has agreed the terms of a deed of agreement with Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 which, when executed, will give Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC access rights across Lot 555 in Deposited Plan 1072228 when Lot 554 in Deposited Plan 1072228 is transferred to Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC.

35    The applicant and the first respondent have agreed to use their best endeavours to finalise the indigenous land use agreement referred to in paragraph (1)(a) of the extract at [34] above within 12 months of the determination.

36    The applicant, on behalf of the Gumbaynggirr People, has agreed that the Gumbaynggirr People (represented through the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation) will not make a claim against the first respondent for the costs of the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation in negotiating the indigenous land use agreement referred to above.

37    The s 87 agreement and the proposed determination recognises that the Gumbaynggirr People, as the common law holders, have native title rights and interests in the land and waters in the claim area. The Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation, which is the same registered native title body corporate as in Phyball, will hold the determined native title rights and interests on trust for the Gumbaynggirr People.

38    The terms of the determination to be made by consent are that native title has been extinguished in relation to part of the determination area and that native title exists in relation to another part of the determination area.

39    First, the parties seek a determination that native title has been wholly extinguished. The parties contend that the basis for that aspect of the proposed determination is that the two relevant parcels of land (Lots 554 and 556 in Deposited Plan 1072228, which are listed in Schedule Two of the proposed determination) were previously subject to Special Lease 1953-15 Kempsey. That Special Lease is agreed by the parties to be a “Scheduled interest” for the purposes of the definition of “previous exclusive possession act” in s 23B(2) of the Native Title Act. Accordingly, subject to what follows regarding s 47B, the parties agree, and I find, that native title has been extinguished in those two parcels.

40    The parties referred to Roberts on behalf of the Widjabul Wia-Bal v Attorney General of New South Wales [2019] FCA 1158, in which Rangiah J held that s 47B of the Native Title Act had no application to land the subject of the permissive occupancies considered in that case. The decision in Widjabul is currently the subject of an appeal to the Full Court. The applicant considers that the proposed determination, if made, might later be varied under s 13 of the Native Title Act if the applicant’s appeal, in relation to permissive occupancies, is upheld: this is reflected in clauses 6 and 7 of the s 87 agreement. For present purposes, however, the applicant and the first respondent have agreed that there is no parcel of land in the application area to which s 47B of the Native Title Act applies.

41    Second, the parties seek a determination that native title is to be recognised in the remainder of the determination area, comprising:

(a)    Lot 555 in Deposited Plan 1072228;

(b)    Lot 557 in Deposited Plan 1072228;

(c)    Lot 558 in Deposited Plan 1072228; and

(d)    Lot 559 in Deposited Plan 1072228.

All the above parcels of land in which native title is to be recognised are held by Nambucca Heads Local Aboriginal Land Council. The parties agree that s 47A of the Native Title Act applies to these parcels.

42    I note that, in accordance with the conditions stipulated in the preceding s 87 agreement for the respondent parties to accede to the present application without requiring further connection material, the native title rights and interest claimed in these proceedings are identical to those determined in Phyball.

43    I find that the draft s 87 agreement and the proposed determination was approved at the meeting on 18 and 19 October 2019 and that the Gumbaynggirr People native title claim group authorised the Applicant to consent to the proposed determination.

44    I find that the requirements of s 56 of the Native Title Act have been met and I determine that the native title is to be held in trust by the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation, the same registered native title body corporate as in Phyball, which has been nominated to be the prescribed body corporate for the purposes of s 57(1) of the Native Title Act and to act as trustee for the Gumbaynggirr People who are the common law holders of the native title rights and interests and to perform the functions set out in s 57(1) of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations.

Conclusion and orders

45    For these reasons I make the orders in the form set out in the proposed determination, without holding a hearing. I congratulate the parties and their advisers.

Associate:

Dated:    26 November 2019