Robertson J held that there be a determination of native title according to the Determination. Native title was also held to be extinguished in the Extinguished Area.
This case concerns the application for a determination of native title made on behalf of the Bundjalung People of Byron Bay. The Bundjalong People of Byron Bay claim area (BPBB Claim Area) is on the north coast of NSW. Defined within the Determination is also certain areas of land which the parties agreed on is excluded from the claim area.
There was no existing approved determination of native title over any part of this current claim area.
His Honour accepted evidence that the applicant was authorised to consent to the native title determination in this proceeding, pursuant to s 62A of the NTA, in accordance with draft determination presented to a meeting held by the claim group.
His Honour noted the lengthy history of the application, originally filed on 5 December 2001 and subject to numerous amendments.
His Honour detailed the relevant conditions of a consent determination under s 87 NTA, and the power of the court under s 94A NTA. His Honour relies on the interpretation of s 87 in King on Behalf of the Eringa Native Title Claim Group v South Australia [2011] FCA 1386 at [11]-[23], which holds that the relevant inquiry for the court is not whether the evidence establishes the conditions of s 87, but rather into whether the parties have entered into an agreement on a free and informed basis. His Honour found that this had been achieved.
His Honour holds that the determination is to effect upon the registration of an Indigenous Land Use Agreement between the applicant, the Arakwal Corporation and the State, as it is an important compromise between the applicant and State. The Arakwal Corporation is held to be the trustee under s 56 NTA.
Rights and Interests
The native title rights and interests recognised are the non-exclusive and non-commercial rights to enter, travel over and remain on the area, take and use, , the natural resources (other than water), take and use the water, but not extending to a right to control the use and flow of the water in any rivers or lakes, camp and erect temporary shelters and temporary structures, light fires, engage in cultural activities, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death including burials, have access to, to maintain and to protect from physical harm sites and places of importance which are of significance to the Bundjalung People of Byron Bay under their traditional laws and customs, teach the physical, cultural and spiritual attributes of places and areas of importance, hunt, fish and be accompanied on the area. These rights may be exercised for personal, domestic and communal purposes (including cultural purposes).