In this matter, Jagot J recognised the non-exclusive native title rights of the Western Bundjalung people in relation to an area located in northern New South Wales, extending from Tenterfield in the west to Casino in the east and Bonalbo in the north to Grafton in the south. The respondents to the application included the State of New South Wales, the Clarence Valley and Tenterfield Shire Council, Telstra, Transgrid and others. Other interests listed in schedule six of the determination included the New South Wales Aboriginal Land Council, Baryulgil, Casino Boolangle, Jana Ngalee, Moombahlene Jubullum and other Local Aboriginal Land Council.
In her reasons for judgment, Jagot J said at [8] that ‘In the area regulated by the NTA, protection of the compact between the State and its citizens and thus the rule of law by ensuring justice according to law in a manner which is efficient, timely and at a cost which is proportionate to the importance and complexity of the matters in dispute, requires particular vigilance.’
Jagot J further observed at [20] that ‘It is also apparent from the authorities that the Court recognises that the State party is effectively the guardian of all of the interests of its people in a native title claim. It should go without saying that the people to whom the State owes a duty include the Aboriginal people who are the claimants. Thus it would be wrong for the State to conceive of its role as merely a gatekeeper through which cogent claims may ultimately be permitted to pass if the claim is one that comes to be supported by so much material that, in all probability, the claim would succeed before the Court if litigated; in particular, ensuring prima facie cogent claims are resolved by agreement in a timely and fair manner, at a reasonable and proportionate cost to claimant groups, is an important part of the public interest the State is intended to protect and promote.’
Jagot J also expressed grave concerns about the progress of native title claims in New South Wales. At paragraphs [57] to [58] Jagot J reflected that: ‘We know too that the agreement under s 87A of the NTA, and thus the proposed consent determination, does not take effect immediately. It takes effect only if the ILUA executed by the parties on 14 August 2017 is registered. The ILUA is confidential to the parties but the intersection of the processes, time and effort dedicated to the agreement of the ILUA and the agreement under s 87A cannot be ignored. Because the negotiation of ILUAs directly impacts on the capacity to resolve native title claims in a manner which is efficient, timely and at a cost which is proportionate to the importance and complexity of the matters in dispute, the Court cannot remain passive merely because it is an ILUA which is causing delay. As the ILUA is confidential I can say only these things. It is apparent from submissions on behalf of the first respondent in various matters that in New South Wales ILUAs are seen by the State as a means, at least in part, of confining the very rights which consent determinations acknowledge and recognise. Whatever else ILUAs might be intended to achieve, they are not intended to be the “price” for a negotiation in good faith of an agreement under ss 87 or 87A. Further, s 211 of the NTA which restricts the operation of State laws on native title rights and interests of certain kinds cannot be overlooked.’
At paragraph [65] Jagot then stated: ‘It is convenient now to summarise what this matter appears to show about systemic issues in respect of native title claims in New South Wales. I say appears to show because I accept that I can only proceed on the basis of what emerges in the context of the Court, which is by no means the whole of the story. But this is what this matter at least appears to show:
As noted, the Department of Industry, which is responsible for administering the Crown Lands Act 1989 (NSW) and thus is presumably responsible for ensuring that the effect of claims on rights and interests under that legislation are considered, is also responsible for co-ordinating the responses of all other government departments and agencies…Whatever the arrangements behind the scenes, the present system means that the resolution of native title claims in New South Wales is extraordinarily time consuming, resource intensive, unwieldy and often ineffective. Given this, it should be no surprise that consent determinations in New South Wales, when we finally reach one after years of effort, are at risk of derailment. But this does not mean the current situation is acceptable.
The State has no published template ILUAs, nor any published guidelines about the kinds of ILUAs that might be appropriate.
The approach of the State to the operation of s 211 of the NTA and the relationship of that provision to ILUAs is not apparent from any published guideline or other document.
The State has no published guidelines explaining what it requires in respect of connection. Applicants and the Court remain in the dark as to what the State in fact requires to satisfy it to enable a consent determination to commence to be negotiated, let alone accepted. References to the ‘State’s credible basis’ standard are descriptions with no known substance. The delays of the kind involved in this matter, two years before negotiations commenced due to apparent issues about connection in the face of the information provided with the claim, cannot readily be reconciled with the duties of the parties.
The State did not seem to have sufficient resources of the necessary kind for effective negotiation and drafting of this consent determination. As noted, the negotiations routinely bogged down and only an extraordinary effort over two days and more by Registrar Stride ultimately cut through the quagmire. As to drafting, to describe the process after the successful mediation in February 2017 as problematic is an understatement. Drafts seem to have been prepared, circulated and amended by lawyers without the fundamental substance of the agreement first being reached between the parties. Lawyers seemed to be expected to draft in attempts to resolve issues which could not be resolved without clarity of instructions. To compound the difficulties, no-one appeared to have version control of drafts. Unilateral amendments were proposed by the State to the Court, without prior discussion with the applicant’s representative. The State also did not adhere to timing requirements relating to drafting, presumably because it could not do so given the resources available for the required tasks.
As the events in the three weeks leading up to today disclose, it is apparent that no matter what date is fixed for the filing of all of the necessary material, the material is simply not filed when required or even a reasonable amount of time before the scheduled hearing date. In the present case, the burdens this has placed on everyone for ensuring the matter could be resolved today have been substantial. In no other kind of case where parties are legally represented would such conduct occur or be tolerated. That it routinely occurs in native title claims in New South Wales should be of the utmost concern to all of us.’
Her Honour continued at [67]: ‘It is also of fundamental importance for all parties to appreciate that the observations of Emmett J in Munn v Queensland [2001] FCA 1229 at [29] which appeared in the joint submissions about the State appearing “in the capacity of parens patriae to look after the interests of the community generally” were made on the basis of the indisputable assumption that the claimants are also part of the community for which the State is responsible. Nor should it be assumed that the "interests of the community" are somehow in opposition to the recognition of native title rights and interests.’
Jagot stated bluntly at [70] that ‘I am not satisfied that the overarching purpose of the civil procedure rules in the [Federal Court of Australia Act 1976 (Cth)] has been met in this case, indeed I believe it has not, and I currently have no confidence that we can continue down our present path and comply with the duties to which are all subject for the many matters which remain to be resolved unless there is a change of approach within the State of New South Wales to dealing with native title claims, particularly claims which are prima facie cogent and thus call for a timely, fair and sensible resolution by agreement.’
Jagot J concluded by stating that: ‘From today all Western Bundjalung People can say now Ngullingah Jugun (our country) and know that this is true not only under their traditional customs and laws, but also under the law of Australia as a whole’ (at [74]).
On the determination taking effect the Ngullingah Jugun Aboriginal Corporation will hold the native title on trust for the common law holders.