Collier J
In this matter, Collier J recognised the rights and interests of the Gumbaynggirr people in relation to Crown land and waters east of the north coast railway line, west of the mean high water mark of the Pacific Ocean, with the northern boundary at the southern border of Lot 102 in the Parish of Newry, County of Raleigh and the southern boundary at Nambucca Shire. Wenonah Head is a landmark within the area. The respondent parties included the Attorney-General of New South Wales, Bellingen Shire Council and Urunga Amateur Anglers Club Inc., the New South Wales Aboriginal Land Council (NSWALC) and Coffs Harbour and District Local Aboriginal Land Council (LALCs) were joined as respondents in November 2015 with the consent of the parties.
[1] In 2014 Jagot J delivered judgment in Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851 (Phyball). This consent determination concerns a separate claim by the same native title claim group, to an area of land outside that recognised in Phyball. The application was filed in June 1998, and has been amended several times, including in 1999, 2001, 2016 and 2017.
Following a conference of experts in June 2016, the applicant and LALCs provided the first respondent with a joint in-principle settlement proposal. Subsequently in September 2016, the State filed a notice stating that it accepted the applicant’s evidence as sufficient to establish connection for the purposes of negotiating a consent determination recognising non-exclusive native title subject to tenure. However, it provided a counter-proposal in early November 2016.
The parties reached an agreement in accordance with s 87 of the Native Title Act 1993 (Cth) (NTA) and joint submissions in support of that agreement were filed by the applicant and the State. [7] The application area is also subject to 10 Aboriginal land claims made under s 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA), one of which (LALC 5044) was made in 1993 prior to the applicant commencing this proceeding. In addition to the s 87 agreement, two Indigenous Land Use Agreements (ILUAs) and an agreement under the ALRA have also been executed between the relevant parties. The s 87 agreement has been facilitated by the execution of the ILUAs and the ALRA agreement.
The parties also submitted that, in order to address uncertainties expected to arise for all parties and the public in relation to the exercise of native title and the co-existence of other non-native title rights and interests, the State, the applicant and other parties agreed to negotiate the two ILUAs and an agreement pursuant to s 36AA of the ALRA, to accompany the consent determination. The parties submitted that the agreements contain ‘matters consequential upon or related to the recognition of native title rights and interests’ as contemplated by Mansfield J in Brown v The State of South Australia [2010] FCA 875 at [29].
The parties entered into the following agreements:
An ILUA between the Applicant, the Gumbaynggirr Wenonah Head Aboriginal Corporation 7376, the Attorney General of New South Wales, the Minister administering the Crown Lands Act 1989 (NSW), the Minister administering the National Parks and Wildlife Act 1974 (NSW) and the chief executive of the Office of Environment and Heritage (the State ILUA);
An ILUA between the Applicant, the Gumbaynggirr Wenonah Head Aboriginal Corporation 7376 and Coffs Harbour and District Local Aboriginal Land Council (the CHDLALC ILUA); and
An Aboriginal Land Agreement pursuant to s 36AA of the ALRA between the Minister administering the Crown Lands Act 1989 (NSW) and Coffs Harbour and District Local Aboriginal Land Council and New South Wales Aboriginal Land.
Ms Moss for the State deposed that the basis of these agreements was to enable the recognition of the Gumbaynggirr people’s native title rights and interests by the Court so that the transfer of lands to the Coffs Harbour and District Local Aboriginal Land Council under the Aboriginal Land Agreement would be subject to native title. The orders sought by the parties were in terms that they are to take effect 21 days after the later in time of registration of the State ILUA and the CHDLALC ILUA.
Collier J accepted the submission of the parties that the s 87 agreement and orders sought by the parties endeavour to balance the interests of the applicant together with the Aboriginal Land Councils (being Coffs Harbour and District Local Aboriginal Land Council and NSW Aboriginal Land Council), the State and the other respondent parties.
The orders sought by the parties expressed the native title rights to be subject to the laws of the State of New South Wales and the Commonwealth. The parties submitted that the order is intended to reflect the understanding of the parties that where the Fisheries Management Act 1994 (NSW) operates to require native title holders to obtain any licence or permit for commercial fishing activities, such a licence or permit to fish for commercial purposes will be obtained.
The Court found that it has power to make an order that the determination of native title takes effect upon the registration of the State ILUA or CHDLALC ILUA, referring to: Doyle on behalf of the Kalkadoon People #4 v State of Queensland (No 3) [2011] FCA 1466; Doctor on behalf of the Bigambul People v State of Queensland [2016] FCA 1447; Bullen on behalf of the Esperance Nyungar People v State of Western Australia [2014] FCA 197; Cashmere on behalf of the Jirrbal People #1 v State of Queensland [2010] FCA 1090.
The non-exclusive native title rights and interests recognised include rights to access the area; hunt, gather and fish; to take, use, share and exchange natural resources for any purpose; conduct and to participate in cultural and religious activities, practices and ceremonies, including the conduct of burials; and maintain and to protect from physical harm, places and areas of importance or significance under traditional laws and customs.
At paragraph [61] Collier J concluded: ‘the settlement of this proceeding also resolves the last pre-2000 native title determination application in New South Wales, which is a milestone in native title determinations in this country. In my view it is clear that the Court has the power to make the orders sought granting native title. I also consider it appropriate that the orders be made.’
[18] The applicant nominated Gumbaynggirr Wenonah Head Aboriginal Corporation ICN 7376 pursuant to s 56(2) of the NTA to hold the determined native title in trust for the common law holders.