Jagot J
In this decision, the Court recognised the native title rights and interests of the Yaegl people over land and waters including the estuaries of the Clarence River from Harwood, to the mouth of the river at Yamba on the north coast of New South Wales. The Yaegl people comprise all the descendants of five named apical ancestors, in addition to persons adopted into or included in the families of those who identify as and are accepted as Yaegl people.
Background
The Yaegl people first sought recognition of their native title rights and interests in November 1996, making this claim the oldest native title matter in the Federal Court of Australia (‘Yaegl #1’). This case also resolved the land based claims filed in 2011 (‘Yaegl #2’). Justice Jagot contrasted the extraordinary delay in resolving the Yaegl #1 proceeding with the comparatively swift manner in which a large portion of the Yaegl #2 proceeding was resolved.
Rights and interests
The non-exclusive native title rights and interests recognised in relation to the Determination Area are the rights to:
enter, travel over and remain on a non-permanent basis;
live on the land, to camp, to erect shelters, and to move about the land in the but not extending to permanently occupy or possess the land;
engage in cultural activities, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death;
hunt and fish;
take and use the water for personal, domestic and communal purposes (including cultural purposes) but not extending to a right to control the use and flow of the water in any rivers or lakes which flow through or past or are situated within the land of two or more occupiers;
gather and use the natural resources including food, medicinal plants, timber, stone, charcoal, ochre and resin as well as materials for fabricating tools and hunting implements and making artwork and musical instruments;
light fires for domestic purposes, but not for the clearance of vegetation;
share, offer and exchange traditional resources derived from the determination area;
have access to, maintain and protect from physical harm, sites and places of importance which are of significance to Yaegl People under their traditional laws and customs;
teach the physical, cultural and spiritual attributes of places and areas of importance on or in the determination area; and
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 whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies and
people requested by the native title holders to assist in, observe or record cultural activities, practices or ceremonies.
Jagot J referred to the State's obligation to satisfy itself that there is a 'credible basis for the application' when entering into negotiations and determining appropriate consent orders, referring to Lander v South Australia [2012] FCA 427 at [11] citing Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. Her Honour noted the voluminous material which had to be prepared and provided so that meaningful negotiations could commence. Stating, at [9],
Given that standard, it is legitimate to ask why it was necessary in this matter for there to be 39 lay affidavits or statements, seven anthropological reports, and two historical reports. No other Aboriginal people were claiming the same land as the Yaegl People. No one, moreover, was suggesting that the incredibly beautiful land we have had the privilege of seeing today was simply unoccupied at the time of European settlement. The issue was whether there was a credible basis for the claim that the Yaegl People were the right people for this land, whose connection with the land continued to be rooted in pre-sovereignty traditional laws and customs. It is important that we all understand that a credible basis for this proposition does not mean evidence that would meet the standard of the balance of probabilities. It does not necessarily mean evidence in an admissible form at all. It means material which provides a foundation for the application which is believable and rational.
The Court determined that the native title is to be held on trust by the Yaegl Traditional Owners Aboriginal Corporation, as the prescribed body corporate.