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

Year: 
2019
Jurisdiction: 
New South Wales
Forum: 
Federal Court
Legislation considered: 
s 37M Federal Court of Australia Act 1976 (Cth)
s 87 Native Title Act 1993 (Cth)
s 94A Native Title Act 1993 (Cth)
s 47A Native Title Act 1993 (Cth)
s 47B Native Title Act 1993 (Cth)
Aboriginal Land Rights Act 1983 (NSW)

Robertson J

In this case the Court made a determination by consent recognising the non-exclusive native title rights and interests of the Gumbaynggirr People in an area covering approximately 23 hectares located on the mid-north coast of New South Wales, between Urunga and Valla Beach.

Robertson J was satisfied the requirements of s 87 of the Native Title Act 1993 (Cth) were met.

Background

This application arose as a consequence of the claimed area being excised from an earlier native title application: the Kelly determination (see Related Content below). As part of the parties agreement in the Kelly determination the respondents agreed to accept that there was a credible basis for a determination of non-exclusive native title in the presently claimed land and waters.

Rights and Interests- Non-exclusive

The nature and extent of the native title rights and interests recognised in the Native Title Area are the non-exclusive rights to:

  • Access, to remain on and traverse the land and waters;
  • Access natural resources and to take, use share and exchange those natural resources for any purposes;
  • Hunt and gather traditional natural resources;
  • Fish;
  • 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
  • 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;
  • Light fires for domestic purposes;
  • Conduct and to participate in cultural and religious activities, practices and ceremonies, including the conduct of burials;
  • Conduct and to participate in meetings
  • Teach on the area the physical, cultural  and spiritual attributes of places and areas of importance under traditional laws and customs;
  • Maintain and to protect from physical harm, places and areas of importance or significance under traditional laws and customs;
  • To be accompanied by persons who, though not Native Title Holders, are:
    • Spouses, partners or parents of native title holders, together with their children and grandchildren;
    • People required under traditional laws and customs for the performance of, and to assist in, observe or record, cultural activities, practices or ceremonies.

Prescribed Body Corporate

The determined native title is to be held on trust by the Gumbaynggirr Wenonah Head Aboriginal Corporation (ICN 7376).

Orders

Robertson J made orders in the form proposed by the parties.