FEDERAL COURT OF AUSTRALIA

Pacey on behalf of the Gumbaynggirr People and Attorney General of New South Wales [2019] FCA 1916

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(2) and (5) and 94A of the Native Title Act 1993 (Cth):

THE COURT NOTES THAT:

A.    On 23 July 2018, the Applicant made a native title determination application in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth) (proceedings number NSD 1312 of 2018) (the “Application”).

B.    The parties have reached an agreement that non-exclusive native title exists in relation to all the land and waters within the Native Title Area described and depicted in Schedule One.

C.    The terms of that 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).

D.    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.

E.    The Applicant has nominated Gumbaynggirr Wenonah Head Aboriginal Corporation ICN 7376 pursuant to section 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title on trust for the common law holders.

F.    Gumbaynggirr Wenonah Head Aboriginal Corporation ICN 7376 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 “Determination”).

2.    The Determination shall take effect from the date of these orders.

3.    On the Determination taking effect, Gumbaynggirr Wenonah Head Aboriginal Corporation ICN 7376 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).

4.    There be no order as to costs.

THE COURT DETERMINES THAT:

1.    Native title exists in the Native Title Area described and depicted in the map in Schedule One.

2.    To the extent of any inconsistency between the written description in Schedule One and the corresponding map in that Schedule, the written description prevails.

Native title holders

3.    Native title in relation to 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 non-exclusive native title rights and interests

4.    Subject to paragraphs 6 and 7, the nature and extent of the native title rights and interests in the Native Title Area are the non-exclusive native title rights to:

(a)    access, to remain on and traverse the land and waters;

(b)    access natural resources and to take, use, share and exchange those natural resources for any purpose;

(c)    hunt and gather traditional natural resources;

(d)    fish;

(e)    take and use 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 creeks or intermittently closing and opening lakes and lagoons;

(f)    live, being to camp on and erect temporary shelters and other temporary structures for that purpose, but not to permanently reside on, possess or occupy the land or waters;

(g)    light fires for domestic purposes;

(h)    conduct and to participate in cultural and religious activities, practices and ceremonies, including the conduct of burials;

(i)    conduct and to participate in meetings;

(j)    teach on the area the physical, cultural and spiritual attributes of places and areas of importance under traditional laws and customs;

(k)    maintain and to protect from physical harm, places and areas of importance or significance under traditional laws and customs;

(l)    to 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; and

(ii)    people required under traditional laws and customs for the performance of, and to assist in, observe or record, cultural activities, practices or ceremonies.

General qualifications on native title rights and interests

5.    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).

6.    The native title rights and interests described in paragraph 4 do not confer:

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

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

7.    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 including any applicable requirement to obtain any licences and/or permits for commercial fishing activities, in particular, any applicable requirements related to commercial fishing activities under the Fisheries Management Act 1994 (NSW); and

(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 Two, except the agreement referred to in paragraph 2 of that Schedule.

Nature and extent of any other rights and interests

8.    The Other Interests in relation to the Native Title Area are described in Schedule Three.

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

9.    Subject to paragraphs 10 and 11, and except as provided by law, the relationship between the native title rights and interests in relation to the land or waters in the Native Title Area and the Other Interests described in Schedule Three 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 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.

10.    The relationship between the native title rights and interests and the rights and interests of Coffs Harbour and District Local Aboriginal Land Council as the holder of an estate in fee simple in relation to Lot 1 in Deposited Plan 1238642 (“CHDLALC’s title to Lot 1 in DP1238642”) is that:

(a)    CHDLALC’s title to Lot 1 in DP1238642 continues 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 CHDLALC’s title to Lot 1 in DP1238642 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 CHDLALC’s title to Lot 1 in DP1238642;

(d)    CHDLALC’s title to Lot 1 in DP1238642, and any activity that is required or permitted by or under and done in accordance with that title, 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 CHDLALC’s title to Lot 1 in DP1238642 while that title exists;

(f)    if CHDLALC’s title to Lot 1 in DP1238642 or its effects is wholly removed or otherwise wholly ceases to operate the native title rights and interests again have full effect; and

(g)    if CHDLALC’s title to Lot 1 in DP1238642 or its effects are removed to an extent or otherwise ceases to operate only to an extent, the native title rights and interests again have effect to that extent.

11.    The relationship between the native title rights and interests and the rights and interests of Coffs Harbour and District Local Aboriginal Land Council pursuant to the Aboriginal Land Agreement referred to in paragraph 2 of Schedule Two in relation to Lot 1 in Deposited Plan 620967 is as determined by sections 36(9), 36AA(8) and 36AA(10) of the Aboriginal Land Rights Act 1983 (NSW). Specifically, the transfer of Lot 1 in Deposited Plan 620967 to Coffs Harbour and District Local Aboriginal Land Council pursuant to the Aboriginal Land Agreement shall be for an estate in fee simple, but shall be subject to any of the native title rights and interests existing in relation to the land and waters concerned immediately before the transfer.

Section 47A of the Native Title Act 1993 (Cth)

12.    Section 47A of the Native Title Act 1993 (Cth) applies to Lot 1 in Deposited Plan 1238642.

Section 47B of the Native Title Act 1993 (Cth)

13.    Section 47B of the Native Title Act 1993 (Cth) applies to Lot 1 in Deposited Plan 620967.

Definitions

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

“Application” means the native title claimant application lodged by the Applicant in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth), and is now proceedings number NSD 1312 of 2018 before the Federal Court of Australia.

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

“Gumbaynggirr Wenonah Head Aboriginal Corporation” means the Gumbaynggirr Wenonah Head Aboriginal Corporation ICN 7376 incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (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, other subordinate legislation and the common law.

“Native Title Area” means the land and waters described and depicted in the map in Schedule One.

“Native Title Holders” means the persons described in paragraph 3.

“native title rights and interests” means the rights and interests described in paragraph 4.

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

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

15.    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 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 – NATIVE TITLE AREA

A.    Description of Native Title Area

The Native Title Area comprises all the land and waters described as:

    Lot 1 in Deposited Plan 620967 (less that area subject to the saltwater inlet); and

    Lot 1 in Deposited Plan 1238642.

B.    Map of the Native Title Area

SCHEDULE TWO – AGREEMENTS

1.    The Indigenous Land Use Agreement under section 24CA of the Native Title Act 1993 (Cth) dated 6 November 2017 (Tribunal No. NI2018/004 registered 26 July 2018) made between Laurie (Larry) Kelly, Richard Pacey, Christine Witt, Marion Witt and Frances Witt, as the registered native title claimant in relation to the land and waters within the external boundaries of the Application, for and on behalf of the Gumbaynggirr People, the Gumbaynggirr Wenonah Head Aboriginal Corporation, the Attorney General of New South Wales, the Minister administering the Crown Lands Act, the Minister administering the National Parks and Wildlife Act 1974 (NSW) and the CEO of the Office of Environment and Heritage.

2.    The Aboriginal Land Agreement under section 36AA of the Aboriginal Land Rights Act 1983 (NSW) dated 6 November 2017 made between the Minister administering the Crown Lands Act 1989 (NSW), the New South Wales Aboriginal Land Council, and Coffs Harbour and District Local Aboriginal Land Council.

3.    The Indigenous Land Use Agreement under section 24CA of the Native Title Act 1993 (Cth) dated 6 November 2017 (Tribunal No. NI2018/005 registered 26 July 2018) made between Laurie (Larry) Kelly, Richard Pacey, Christine Witt, Marion Witt and Frances Witt, as the registered native title claimant in relation to the land and waters within the external boundaries of the Application, for and on behalf of the Gumbaynggirr People, the Gumbaynggirr Wenonah Head Aboriginal Corporation and Coffs Harbour and District Local Aboriginal Land Council.

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

SCHEDULE THREE – OTHER INTERESTS IN THE NATIVE TITLE AREA

The Other Interests, as they exist at the date this Determination takes effect, are as follows:

1.    Aboriginal Land Council Interests

(a)    The rights and interests of Coffs Harbour and District Local Aboriginal Land Council, including its right to the transfer of an estate in fee simple of Lot 1 in DP 620967, pursuant to the Aboriginal Land Agreement referred to in paragraph 2 of Schedule Two.

(b)    The rights and interests of Coffs Harbour and District Local Aboriginal Land Council as the holder of an estate in fee simple in Lot 1 in DP 1238642.

(c)    The rights and interests of Coffs Harbour and District Local Aboriginal Land Council pursuant to the Indigenous Land Use Agreement described in paragraph 3 of Schedule Two.

2.    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 New South Wales Department of Planning, Industry and Environment—Fisheries 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 Planning, Industry and Environment—Fisheries, and employees or agents of the same under the Fisheries Management Act 1994 (NSW) and Regulations made under that Act.

3.    Crown Lands Interests

(a)    The rights of the holders from time to time of leases, licences and permits granted or issued under the Crown Land Management Act 2016 (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 Planning, Industry and Environment subject to the laws of the State of New South Wales and of the Commonwealth.

4.    Local Government Interests

The rights and interests of the Bellingen Shire Council as a council under its local government jurisdiction and as an entity exercising statutory powers in respect of the land and waters within its local government area.

5.    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 otherwise in the exercise of its executive power 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 the common law including but not limited to the public right to fish.

(d)    Rights and interests of members of the public arising under the Public Access Easement across Lot 1 in DP1238642.

(e)    So far as confirmed pursuant to sections 16 and 18 of the Native Title (New South Wales) Act 1994 (NSW), any other existing public access to and enjoyment of:

(i)    waterways;

(ii)    the beds 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.

(f)    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    This Application is for a consent determination under ss 87 and 94A of the Native Title Act 1993 (Cth). The application was filed on 23 July 2018 by Richard Pacey, Christine Witt, Marion Witt and Frances Witt on behalf of the Gumbaynggirr People.

2    The proposed consent determination is at Annexure A to the s 87 agreement that has been signed by the parties and which was filed with the Court on 1 November 2019.

3    The applicant and the first respondent filed joint submissions on 1 November 2019 and what follows is drawn from those submissions.

The area claimed

4    The area claimed in the Application covers approximately 23 hectares and is located on the mid-north coast of New South Wales, between Urunga and Valla Beach. The nearest populated centre is Urunga, which is approximately four kilometres to the north of the area claimed.

5    The Application area comprises the following two parcels of land:

(a)    Lot 1 in Deposited Plan 620967, less that area subject to a saltwater inlet, being Crown land that is to be transferred to the Coffs Harbour and District Local Aboriginal Land Council pursuant to an Aboriginal Land Agreement; and

(b)    Lot 1 in Deposited Plan 1238642, previously Lot 4 in Deposited Plan 219743, being land that is now held by the Coffs Harbour and District Local Aboriginal Land Council as a result of a transfer under the Aboriginal Land Rights Act 1983 (NSW).

The background

6    This Application arose as a consequence of the land the subject of the present proceedings being excised from an earlier native title determination application (proceedings NSD 6104 of 1998). That application was determined on 8 December 2017 by the Court with the consent of the parties by way of a s 87 agreement: Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459.

7    The agreement between the applicant and the respondent parties in the Kelly determination included that the respondent parties would accept that there was a credible basis for a determination of non-exclusive native title in the presently claimed land and waters, such that the applicant was not required to provide any further connection material, if certain conditions were met: see [20] of these reasons.

8    Consistently with the first respondent’s agreement that no further connection material would be required, and the late excision of the land the subject of these proceedings from the preceding application, the first respondent has accepted that the applicant’s connection material is sufficiently credible to justify a determination of native title by consent in these proceedings. The applicant and the first respondent consider that this course is the most prudent, as well as the quickest, most inexpensive and most efficient means of facilitating the just resolution of these proceedings consistent with the overarching purpose of civil practice and procedure as enacted by s 37M of the Federal Court of Australia Act 1976 (Cth).

9    Under the terms of the s 87 agreement in the Kelly determination, the respondent parties also agreed to accept occupation for the purposes of ss 47A(1)(c) and 47B(1)(c) of the Native Title Act in relation to land claimed in this Application. The parties jointly submit that ss 47A and 47B apply to Lot 1 in Deposited Plan 1238642 and Lot 1 in Deposited Plan 620967 (less that area subject to the saltwater inlet) respectively.

10    The applicant and the first respondent seek to honour the s 87 agreement in Kelly through seeking a 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.

11    In negotiating the resolution of this Application and the Kelly determination, the applicant, the first respondent, the Gumbaynggirr Wenonah Head Aboriginal Corporation (RNTBC, ICN 7376) and certain state agencies entered into the Gumbaynggirr (Boney) settlement ILUA on 6 November 2017, which was registered on the Register of Indigenous Land Use Agreements on 26 July 2018 (State ILUA). The State ILUA covers the area claimed in this Application, as well as other areas.

12    On 6 November 2017, the then Minister for Lands and Forestry, the Coffs Harbour and District Local Aboriginal Land Council and the New South Wales Aboriginal Land Council entered into an Aboriginal Land Agreement pursuant to s 36AA of the Aboriginal Land Rights Act 1983 (NSW), to facilitate the transfer of Lot 1 in Deposited Plan 620967 to Coffs Harbour and District Local Aboriginal Land Council.

13    In negotiating the resolution of this Application and the Kelly determination, the applicant in the original application, the Gumbaynggirr Wenonah Head Aboriginal Corporation and the Coffs Harbour and District Local Aboriginal Land Council entered into the Gumbaynggirr Wenonah Head ILUA on 6 November 2017, which was registered on the Register of Indigenous Land Use Agreements on 26 July 2018. The Gumbaynggirr Wenonah Head ILUA covers the area claimed in this Application, as well as other areas.

14    The State ILUA, the Gumbaynggirr Wenonah Head ILUA and the Aboriginal Land Agreement were entered into on 6 November 2017 and are referred to in paragraphs 1, 2 and 3 of Schedule 2 of the proposed consent determination.

15    The notification period in this matter commenced on 27 February 2019 and ended on 27 May 2019.

The native title holders

16    The description of the native title holders in this Application are identical to those described in: Kelly; Phyball on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2014] FCA 1459; and Williams on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1915, in which a consent determination hearing was held at Sydney on the same day as these proceedings.

The evidence

17    In support of the present Application, the applicant and the first respondent relied on an affidavit affirmed by Janet Rosemary Moss on 31 October 2019 and an affidavit affirmed by Mishka Jade Holt on 1 November 2019.

18    Ms Moss is a solicitor employed in the office of the Crown Solicitor of New South Wales and has the carriage of the matter on behalf of the Attorney General, subject to the direction and control of the Crown Solicitor.

19    In her affidavit she deposed to the background to the preceding application and its relationship to the present Application.

20    She referred to and set out Recitals B and C and [3] of the preceding s 87 agreement, as follows:

B.    On or around October 2017, the Applicant amended the Application to expressly exclude Lot 1 in DP 620967 and Lot 4 in DP 2L9743.

C.     In relation to the land expressly excluded from the Application (described in Recital B), the Applicant intends to lodge a further native title determination application under the Native Title Act 1993 (Cth) in relation to those two parcels of land (the “Further Application”).

…

3.    If the Applicant lodges the Further Application over Lot 1 in DP 620967 and Lot 4 in DP 219743 within six months of the date of the Federal Court hearing for the determination of the Application (that is, by 8 June 2018) or within other such timeframes as agreed, the Respondent Parties:

(a)    will accept that there is a credible basis for a determination of native title recognising non-exclusive native title in the land and waters within the external boundaries of the Further Application, such that the Respondent Parties will not require any further connection evidence other than that which was filed or provided in the Application since 2015 (listed in the document annexed to this Agreement and marked Annexure “B”) to consent to a further determination that native title exists in favour of the Gumbaynggirr People in relation to the Further Application Area, on the basis that:

(i)    the description of the native title claim group is identical to the Application, and

(ii)    the nature and extent of the native title rights and interests determined are identical to those determined by the Federal Court in relation to the Application.

(b)    will accept occupation for the purposes of sections 47A(1)(c) and 47B(1)(c) of the Native Title Act 1993 (Cth) in relation to land claimed in the Further Application. If the Applicant identifies any changes relevant to occupation of the Application area prior to the lodgement of the Further Application, then the Applicant is required to provide the Respondent Parties with evidence of occupation for the purposes of sections 47A(l)(c) and 47B(l)(c) of the Native title Act 1993 (Cth).

(c)    will not oppose the Further Application on the basis of any estoppel or abuse of process based on the determination of native title made by the Federal Court of Australia in relation to the Application.

21    Ms Moss deposed that the parcels of land described in paragraph 3 of the preceding s 87 agreement comprise the whole of the land and waters the subject of this Application.

22    Ms Moss deposed that on 6 February 2018, Lot 4 in Deposited Plan 219743 became redefined as Lot 1 in Deposited Plan 1238642. Thus, she deposed, the claim area of the preceding application, in its original form, included the land or waters that are the subject of this Application, prior to that application being amended.

23    Ms Moss deposed that the preceding application was amended on 6 November 2017 to give effect to the preceding s 87 agreement.

24    On 8 December 2017, Collier J made orders in relation to the preceding application giving effect to the preceding s 87 agreement determining native title by consent: see Kelly.

25    The approved determination of native title in relation to the preceding application included an order that the Gumbaynggirr Wenonah Head Aboriginal Corporation was to hold the determined native title on trust for the common law holders.

26    Ms Moss deposed that the present Application area was excised from the preceding application towards the end of those proceedings. Accordingly, she continued, the connection material provided by the applicant covered the land and waters subject to these proceedings, and satisfied the Attorney General that it was sufficiently credible that the native title claimants held native title in relation to the Application area before the two parcels within the Application area were excised. Ms Moss deposed that at the time the assessment was done, the Application area was included in the preceding application and therefore covered by the assessment.

27    A summary of the applicant’s connection material was set out in another affidavit of Ms Moss affirmed on 13 November 2017 and filed in support of the preceding application, at [74]-[76]. I shall treat that affidavit as being before me on this Application.

28    The process by which the Attorney General considered that the Applicant’s connection material was sufficiently credible is detailed in Ms Moss’s 13 November 2017 affidavit at [77]-[80] and [113]-[114].

29    I accept that the first respondent’s assessment of the applicant’s connection material included:

(a)    having the applicant’s connection evidence and other relevant material reviewed by in-house researchers with post-graduate qualifications in history and anthropology;

(b)    obtaining an opinion from counsel as to whether the evidence was sufficient to demonstrate that the Application had a credible basis;

(c)    engagement of an external expert anthropologist to undertake a review of the connection material; and

(d)    convening a conference of experts in Sydney.

30    I also accept that following this arm’s length process, the first respondent was satisfied that the Application had a credible basis sufficient to justify the first respondent consenting to the negotiated resolution of the proceedings and joining with the applicant in asking the Court to make orders in terms of the proposed consent determination.

31    Ms Moss deposed that as the applicant commenced this present Application within a timeframe that was agreed by the parties to the preceding 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.

32    Ms Moss deposed that the current tenure for the present Application area was as follows:

(a)    Lot 1 in Deposited Plan 1238642 is held as an estate in fee simple by Coffs Harbour and District Local Aboriginal Land Council; and

(b)    Lot 1 in Deposited Plan 620967 is Crown Land within the meaning of the Crown Land Management Act 2016 (NSW).

The current tenure categories for this Application area are:

(a)    land held by Coffs Harbour and District Local Aboriginal Land Council (being Lot 1 in Deposited Plan 1238642); and

(b)    Crown Land (being Lot 1 in Deposited Plan 620967).

33    Ms Moss stated that any historical extinguishment of native title on Lot 1 in Deposited Plan 1238642 is to be disregarded under s 47A of the Native Title Act, and that any historical extinguishment of native title on Lot 1 in Deposited Plan 620967 (less that area subject to the saltwater inlet, which is included in the determination of the preceding application) is to be disregarded under s 47B of the Native Title Act.

34    Ms Moss deposed that the outcome that was negotiated between the parties to resolve the preceding application included, in addition to the determination of native title, the execution and registration of the State ILUA and the Aboriginal Land Agreement, as described above at [11]-[12].

35    Ms Moss stated that these agreements, together with the s 87 agreement and proposed consent determination, enable prior extinguishment to be disregarded pursuant to ss 47A and 47B of the Native Title Act and recognise that the Gumbaynggirr People have native title rights and interests in the relevant area.

36    I accept the evidence of Ms Moss.

37    Ms Holt is the Principal Solicitor of NTSCORP Limited, the legal representative of the applicant in the present Application.

38    She deposed to a meeting of members of the Gumbaynggirr People native title claim group convened by NTSCORP on 20 October 2019 at the Valla Beach Tourist Park, at 1 Regatta Drive, Valla Beach, New South Wales. The meeting was convened to consider and make decisions in relation to a number of matters, including:

(a)    nominating Gumbaynggirr Wenonah Head Aboriginal Corporation to be the prescribed body corporate to hold the Gumbaynggirr People’s native title rights and interests, once determined, in trust; and

(b)    authorising the proposed s 87 agreement and consent determination for the Application.

39    Ms Holt deposed to the notification of, preparation for and conduct of the meeting on 20 October 2019, 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 Ms Tessa Sparks (NTSCORP Law Graduate). These staff assisted with the presentations and logistical arrangements at the meeting. Ms Rotumah facilitated the meeting. Ms Holt attended the meeting to provide advice and make presentations.

40    The meeting on 20 October 2019 was attended by approximately 55 Gumbaynggirr People native title claim group members.

41    Ms Holt deposed to the passing of a resolution, by majority, as follows:

The Gumbaynggirr People native title claim group nominates Gumbaynggirr Wenonah Head Aboriginal Corporation RNTBC ICN 7376 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).

She annexed to her affidavit written confirmation of that decision signed by members of the Gumbaynggirr People native title claim group for the purposes of s 56(2)(i) of the Native Title Act.

42    Ms Holt also deposed to the unanimous passing, at the meeting, of the following resolution:

The Gumbaynggirr People native title claim group authorises the Gumbaynggirr People Applicant to agree to the Court making a determination of native title in respect of Gumbaynggirr People’s native title determination application (including the native title consent determination and the section 87 agreement) in the terms reviewed at today’s Gumbaynggirr People native title claim group meeting (20 October 2019).

43    Ms Holt deposed also to an Annual General Meeting of members of the Gumbaynggirr Wenonah Head Aboriginal Corporation on the afternoon of 20 October 2019. She was present at that meeting.

44    Ms Holt deposed that on 31 October 2019, following the Annual General Meeting of members, she received correspondence from Gumbaynggirr Wenonah Head Aboriginal Corporation dated 30 October 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 section 57(1) of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

45    I accept Ms Holt’s evidence.

Consideration of the submissions of the applicant and the first respondent

46    For the reasons which follow, I find 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 hearing.

47    I find that the requirements of s 87 are met, that is:

(a)    the notification period specified in section 66 of the Native Title Act 1993 (Cth) 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;

(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.

48    I also consider 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.

49    I find that there is no approved determination of native title for any part of the Application area in this proceeding.

50    I find that the proposed orders are consistent with s 94A of the Native Title Act. The proposed orders set out details of the matters mentioned in s 225 of the Native Title Act.

51    I note that 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. The applicant and first respondent submitted that there has been no suggestion of bad faith by any party regarding the action or inaction of any other party throughout the negotiation period. I accept these submissions.

52    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 Kelly.

53    Under s 56 of the Native Title Act, I determine that the native title is to be held in trust by the Gumbaynggirr Wenonah Head Aboriginal Corporation, which is the same registered native title body corporate as Kelly, and that it has been nominated to be the prescribed body corporate for the purposes of s 57(1) of the Native Title Act 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 1999 (Cth).

Conclusion and orders

54    For these reasons I make the orders in the form proposed by the parties, without a hearing. I congratulate the parties, and their advisors, on achieving this result.

Associate:

Dated:    26 November 2019