Bandjalang People No 3 v Attorney-General of New South Wales

The s 87 agreement 9 On 26 March 2021, the solicitors for all of the parties entered into an agreement under s 87 of the Act (the s 87 agreement). The parties are: the applicant, comprised of Veronica Wilson, Rebecca Cowan, Gwen Hickling, Nahrina Yuke and Afzal Khan, who bring this proceeding on behalf of the Bandjalang people with their authorisation; the Attorney-General on behalf of the State of New South Wales; six land councils, namely Bogal, Casino Boolangle, Jali, Ngulingah and Yaegl Local Aboriginal Land Councils and the New South Wales Aboriginal Land Council, which hold between them interests in the 52 parcels of land; and two electricity providers, Essential Energy and Transgrid. 10 The s 87 agreement contained orders that the parties ask the Court to make today. The parties have agreed that the Court should determine, by consent, that the Bandjalang people have the following non-exclusive rights over the 52 parcels of land: the right to hunt, fish and gather the traditional natural resources of the area for non-commercial personal, domestic and communal use; the right to take and use waters; to access and camp; to conduct ceremonies, teach the physical, cultural and spiritual attributes of places and areas of importance; to have access, to maintain and protect from physical harm, sites that are of significance to them under their traditional laws and customs. 11 The s 87 agreement also recorded several other matters, including acknowledging that other rights and interests exist alongside, and in some places, in place of, the Bandjalang people's non-exclusive rights and interests over their land and waters.

The legal context 12 A consent determination like this is a very important proceeding. It establishes for the whole Australian community that an indigenous people has legally enforceable native title rights and interests over the land and waters that it covers. I have summarised some of the important matters for all of those involved in a consent determination in earlier decisions and will draw on those in what I now say (see Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 at [4]-[6]). 13 The recognition and protection of native title by our nation's common law in the landmark decision of Mabo v State of Queensland (No 2) (1992) 175 CLR 1 and by the Parliament of the Commonwealth when it passed the Act enabled Indigenous Australians and their descendants to satisfy the very human desire to identify with, enjoy and feel a part of their cultural heritage on land and waters with which they have, and feel, a spiritual and emotional connection. When the Court makes an order for a determination of native title, it exercises the judicial power of the Commonwealth, on behalf of the whole of the Australian community, to recognise the indigenous claimants' rights and interests as having the force of law in both social systems: cf Long v Northern Territory of Australia [2011] FCA 571 at [6] per Mansfield J. 14 A determination by the Court that native title exists serves many important purposes, as the preamble to the Act acknowledges. These include the recognition of the entitlement of Indigenous Australians to enjoy rights and interests in their land and waters, in accordance with their peoples' traditional laws and customs. Those rights and interests were not previously recognised, following European settlement and the displacement and frequent dispossession of Indigenous Australians. However, from today, the rights and interests of the Bandjalang people in the 52 parcels will be protected by the force of law so that the current and future descendants of the original indigenous inhabitants before the 1840s will enjoy rights and interests that their ancestors had. 15 The different land councils held all of the 52 parcels under the Aboriginal Land Rights Act 1983 (NSW). Because there are differences between the rights under that Act and the rights of native title holders under the Native Title Act, some difficult issues arose when the parties were negotiating for the 2013 determination. As a result, those parcels could not be included in the 2013 determination. The land councils and their legal representatives have engaged co-operatively with the applicant and the State in arriving at the terms of the s 87 agreement and today's consent determination. 16 The Court has not had a hearing of the applicant's claim on its merits. Even so, the Court has an important power to make a determination that native title over land and waters exists under s 87 of the Act once all of the parties have signed a written agreement, and provided that certain other conditions are met. In these proceedings, the Attorney-General of New South Wales, as the responsible Minister of State, has consented to the making of the determination of native title. Before the Court can make the orders recognising native title, it must be satisfied that the consent determination has been reached after proper consideration by the parties, particularly the State, of all of the matters that the Act requires be established. This consensual process depends upon the executive government of each State and Territory in whose jurisdiction the claim is made taking an active role in the litigation. The government must scrutinise carefully any claim for native title in order to seek to protect the interests of the whole community that it represents: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at 115 [29] per Emmett J. 17 I will now deal with the legal and factual issues that I must decide in order to make the consent determination. Under ss 87(1A) and (2) of the Act, the Court has a special power to make an order to recognise native title rights and interests in, or consistent with, the terms of the parties' agreement if it appears to the Court to be appropriate to do so. The power must be exercised having regard to the beneficial purpose of the Act and its moral foundation that is declared in the words of its preamble: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at 461 [63] per Wilcox, French and Weinberg JJ. 18 In making a determination that native title exists, even by consent and without a hearing, the Court must set out details of the matters mentioned in s 225 (s 94A). Accordingly, if the Court is asked to make a consent determination, it must be satisfied that there is sufficient evidence before it that would make it appropriate to do so. However, it is not necessary for the parties to tender evidence as if they were still contesting the proceedings. That is not the purpose for which such evidence is required. Rather, as a former Chief Justice of Australia explained, it may be necessary to reassure the Court that a proper basis exists for the determination because "… the agreement is rooted in reality" (The Hon R.S. French AC, Native Title - A Constitutional Shift?, published in: H.P. Lee and P. Gerangelos (ed), Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton, The Federation Press, 2009, pp 126-154). 19 What evidence will be sufficient will vary from case to case, but it must show that the orders have a substantive and real foundation. Anthropological evidence is often tendered so as to assist the Court in arriving at this degree of satisfaction. Evidence is relevant for the Court to satisfy itself that the parties had a real basis to arrive at their consent. Indeed, in the first place, because of its cogency, the same evidence is likely to have induced the respondents, especially the Government, to consent to the making of the determination of native title. 20 However, I must still be satisfied that the parties' agreement to include the Bandjalang people's native title rights and interests in the old school site in the orders that I am asked to make today would be within the power of the Court (s 87(1)(c)).

Would it be within the power of the Court to make a determination about the old school site? 21 On 15 March 1985, the State transferred the ownership of the old school site (Lot 223 in DP755631 in the parish of West Coraki, County of Richmond in the District of Grafton) to the Bogal Land Council under the Aboriginal Land Rights Act. As a result, the Bogal Land Council holds that site for the benefit of Aboriginal people within the meaning of s 47A(1)(b) of the Native Title Act, and it can be included in the consent determination if I am satisfied that it would be within the power of the Court to disregard, under s 47A(2), the earlier act that extinguished native title. 22 The October 2020 hearing was about whether the construction and establishment of the Bora Ridge Public School in 1899 as a public work by the then Colonial Government of New South Wales and later extensions of it in 1919 and 1925, wholly or partly extinguished native title. If that had happened, then s 47A of the Act may not have enabled the Court to make any orders about the old school site because it had been used as a public work: see ss 23B(7), 23E and 47A(2)(b): s 20 of the Native Title (New South Wales) Act 1994 (NSW) and Erubam Le (Darnley Islander) #1 v Queensland (2003) 134 FCR 155. It is not necessary to explain the legal issues in any detail. 23 In 1899, the Commercial Banking Company of Sydney Ltd (the bank) was the owner of the freehold title in the school site. The bank then leased the site to the Department of Public Instruction in 1899, so that the school could be constructed and established. The later construction and establishment of the teacher's residence occurred in 1919. All of those events happened after the bank had been granted complete ownership. During the hearing, I suggested that the parties' concerns with the lease and subsequent dealings with the old school site by the Colonial and later State Governments appeared to be irrelevant because all native title in that land had been extinguished before 1899 when the bank received its grant of the freehold estate. That is the effect of both s 237A of the Native Title Act and the common law, as the High Court decided in Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96 at 126 [43] and 128 [46]-[47] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. 24 Thus it appeared that all subsequent dealings by the bank, Colony and State had occurred on the basis of the validity of the grant of freehold to the bank, and s 47A(3) preserved the validity of those dealings as facts. Therefore, when the State transferred its title in the old school site to Bogal Land Council in 1985, s 47A(2) had the legal consequence that the earlier extinguishment of native title rights and interests that occurred prior to 1899, when the bank acquired the freehold title in the land, could be disregarded and it did not matter that later the old school site became a public work. Section 47A(3) preserves the validity of all intermediate dealings in land between the act extinguishing native title that s 47A(2) requires to be disregarded and the present owner of that land. 25 On that basis, and the agreement of the parties, there is a real and substantive foundation to conclude that it would be within the power of the Court to determine that, pursuant to s 47A(2), any prior extinguishment of the Bandjalang people's native title rights and interests in the old school site can be disregarded (s 87(1)(c)). Thus, the Court would have power to determine that the Bandjalang people can again exercise, at least, non-exclusive native title rights and interests and use the bora ring and surrounding land on that site in accordance with their traditional laws and customs.

Authorisation for the s 87 agreement under s 251A of the Act 26 Helen Orr, a solicitor employed by NTSCORP, the representative body, is the solicitor for the applicant with day-to-day responsibility for this consolidated proceeding. In her affidavit, affirmed on 7 April 2021, she described the background to the parties entering into the signed s 87 agreement that was filed on 27 March 2021. She said that the applicant and the State supported the Court acting on that agreement and that they had filed joint written submissions that I have found helpful. 27 Ms Orr explained that on 5 November 2020, she prepared a notice of a meeting of the claim group calling an authorisation meeting under s 251A of the Act to seek the claim group's authorisation of the then proposed s 87 agreement and the nomination of Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC (Bandjalang RNTBC) as the prescribed body corporate to hold on trust for the Bandjalang people the native title rights and interests that will be recognised by the consent determination in accordance with s 56 of the Act. 28 The notice set the meeting for 7 December 2020 at 10:30am at the Woodburn Evans Head RSL Club. The notice of meeting identified the composition of the claim group and the proposed consent determination area. It included an agenda that provided for the meeting to, first, update attendees on the proposed consent determination, secondly, confirm a decision-making process for the meeting to follow, thirdly, authorise and make decisions in relation to the proposed consent determination that would recognise or, in some cases, extinguish the Bandjalang people's native title rights and interests in some parcels of land and, fourthly, consider and make decisions about nominating and authorising Bandjalang RNTBC to hold as trustee the Bandjalang people's native title rights and interests in relation this proceeding. The notice required persons proposing to attend to register in advance of the meeting because the venue had a maximum capacity prescribed under public health regulations operating to deal with the COVID-19 pandemic. The notice of meeting advised that NTSCORP would consider providing financial assistance to persons who needed it to attend the meeting. 29 Ms Orr caused the notice of the authorisation meeting to be advertised in the Koori Mail edition of 18 November 2020, and she and other NTSCORP staff arranged for copies to be posted to 201 addressees being the 156 members of Bandjalang RNTBC and others known to NTSCORP as members of the Bandjalang people whose addresses it maintained on its mailing list. I am satisfied by Ms Orr's evidence that the notice of the authorisation meeting was sufficient, given appropriately and that NTSCORP assisted those members of the claim group who wished to attend but had to travel long distances to do so with sustenance, travel and accommodation expenses.

The authorisation meeting of 7 December 2020 30 The meeting occurred on 7 December 2020 with about 31 members of the Bandjalang people in attendance whom Ms Orr considered were representative of families constituting the claim group. She outlined the background on the progress of the claim and went through with them the terms of the proposed consent determination and s 87 agreement, answering questions, together with Alexander Chalmers, deputy principal solicitor of NTSCORP, as she progressed. At times the meeting discussed and clarified issues during this process. Ms Orr said that the terms of the then proposed consent determination were substantially the same as the current ones that I will make today. 31 The meeting resolved that: those present were sufficiently representative of the Bandjalang people to be able to make authoritative decisions about this proceeding and that there had been adequate notice of the meeting; the description of the claim group in the proposed consent determination be confirmed; the Bandjalang people had no particular decision-making process under their traditional laws and customs and the meeting would proceed with discussion led or guided by family representatives to seek a consensus that would then be put to the meeting for acceptance in a clearly worded resolution and decided on by the votes of the majority, being the same process used in earlier authorisation meetings on 7 October 2015 and 15 June 2018; the applicant be authorised to deal with all matters arising in the proceedings and to enter into the s 87 agreement on the basis that the then form of the agreement and proposed consent determination could be the subject of minor amendments; Bandjalang RNTBC would hold the Bandjalang people's native title rights and interests the subject of the proposed consent determination on trust and that Rebecca Cowan and Nahrina Yuke were authorised to sign the confirmation of that nomination which is in evidence.

Bandjalang RNTBC accepts the nomination 32 On 13 January 2021, NTSCORP posted notices of the annual general meeting of Bandjalang RNTBC to be held at Woodburn Evans Head RSL Club on 9 and 10 February 2021. Ms Orr attended the meeting and observed that the members present, who formed a quorum, passed a resolution that Bandjalang RNTBC agreed to hold, on trust for the common law holders, the native title rights and interests of the Bandjalang people the subject of the proposed consent determination. 33 I am satisfied on the evidence, in accordance with s 56(2)(b) of the Act, that Bandjalang RNTBC has been authorised by the Bandjalang people, being the common law holders of their native title rights and interests, to hold on trust for them those rights and interests the subject of the consent determination to be made today.

Jurisdictional findings 34 Negotiations that lead to consent orders, such as the ones I am making today, resolve the whole or significant parts of litigation and have a very important place in our court system. They enable the parties to achieve results that are acceptable to all of them but that may not have been available to one or more of the parties if the Court had to decide the dispute. And, of course, such agreements also enable the Court to deal more quickly with other people's cases. 35 A determination of native title affects the status of the land and waters to which it relates because it recognises rights and interests in them that, subject to the Act and the terms of the determination itself, the holders can exercise forever after against any other person, including the Commonwealth and the State: cf Alyawarr 145 FCR at 463 [70]. Because a consent determination, just as a determination after a fully contested hearing, creates this status, the Court must be careful to ensure that the State, as representative of the community generally, has itself played an active role in carefully evaluating the material and evidence on which its consent is based. 36 Here, the Court has already made the 2013 determination of the Bandjalang people's native title rights and interests over the whole of land mass within which the 52 lots are physically located, by consent. The Court was then satisfied that the State had fulfilled its responsibilities, and acted in reliance on the affidavit of Janet Moss, affirmed on 25 November 2013, who was the solicitor acting for the State: see Bandjalang [2013] FCA 1278 at [18]. 37 The State's evidence demonstrated that it has undertaken that responsibility appropriately. The State relied on the affidavit of Caitlin Fegan affirmed on 6 April 2021 which annexed the affidavit of Ms Moss affirmed 25 November 2013 in support of the Court making the 2013 determination. Ms Fegan said that the Attorney-General was satisfied, on the basis of what Ms Moss had explained about the extensive research and advice that the State had considered when consenting to the 2013 determination, that there was a credible basis to do so again for present purposes. 38 Ms Moss explained that in the time since the first proceeding had commenced on 17 May 1996, the applicant and the State had done extensive work in investigating, preparing and exchanging evidence. That included participating in taking preservation evidence on-country before the late Hely J in October 2002, reviewing expert anthropological reports by Dr John Morton, on which the applicant relied, and a review of it and other material that Dr Lee Sackett conducted as the State's expert. The applicant provided extensive affidavit evidence from members of the claim group and others, together with expert linguistic and archaeological reports. The State relied on its in-house researchers before briefing senior and junior counsel in 2009 to make a full assessment of all the material that had been obtained to date in respect of the applicant's then current amended claims. 39 The State's counsel advised on 7 September 2009 that the State could be satisfied that there was a cogent and credible basis for a consent determination that recognised that the Bandjalang people had non-exclusive native title rights and interests in the land and waters now covered by the Court's 2013 determination. 40 Ms Fegan said that the then Attorney-General had accepted that the applicant's material was sufficiently credible to support the continuity of connection between the Bandjalang people and the land and waters covered by the areas claimed in the 2013 determination. That area necessarily included the residual areas now claimed in this proceeding and on 6 June 2017 the Attorney-General filed a notice that this was still the State's position. 41 Ms Fegan said that, based on the evidence referred to in Ms Moss' affidavit and the 2013 determination, the current Attorney-General is also satisfied that there is a sufficiently credible basis to justify the State agreeing to the Court making the proposed consent determination in accordance with the s 87 agreement that the State signed on 26 March 2021. 42 I am satisfied that, first, all of the parties to both proceedings Nos. 3 and 4 signed the agreement under s 87 of the Act on 25 and 26 March 2021, secondly, it resolves both proceedings and, thirdly, an order in, or consistent with, the terms of that agreement would be within the power of the Court because: each of the original and amended Form 1 applications filed in proceedings Nos. 3 and 4 was valid and made in accordance with the Act (ss 61, 64 and 81); the Native Title Registrar registered proceeding No 3 on 25 August 2016 under s 190A of the Act and the notification period under s 66 ran between 19 October 2016 and 18 January 2017; the Registrar registered proceeding No 4 on 29 March 2019 under s 190A of the Act and the notification period under s 66 ran between 8 May 2019 and 7 August 2019; on 29 August 2019, Jagot J ordered that both proceedings Nos. 3 and 4 be consolidated; the applications in proceedings Nos. 3 and 4 and the consolidated application relate to areas (being the 52 lots) in respect of which there is no approved determination of native title (ss 13(1)(a) and 61A(1)); and the proposed orders comply with the requirements of ss 94A and 225 because they set out, in relation to the land and waters specified, the group of persons holding the common or group rights comprising the native title, the nature and extent of each of the native title and other rights and interests, the relationship between those native title and other rights and interests, and those orders acknowledge that the Bandjalang people's native title rights and interests to possession, occupation, use and enjoyment of the land and waters will not be to the exclusion of others.

Conclusion 43 For these reasons, I am satisfied that it is appropriate to make the consent determination in the terms proposed. The Court congratulates the parties on achieving a resolution that gives the Bandjalang people rights and interests in the 52 parcels of land that will henceforward be protected by both their own system of law and the orders of this Court made today pursuant to the judicial power of the Commonwealth under the Constitution of Australia. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

SCHEDULE OF PARTIES NSD 426 of 2016 Applicants Fourth Applicant: GWEN HICKLING Fifth Applicant: NAHRINA YUKE Sixth Applicant: AFZAL KHAN Respondents Fourth Respondent: JALI LOCAL ABORIGINAL LAND COUNCIL Fifth Respondent: NGULINGAH LOCAL ABORIGINAL LAND COUNCIL Sixth Respondent: NSW ABORIGINAL LAND COUNCIL Seventh Respondent: YAEGL LOCAL ABORIGINAL LAND COUNCIL Eighth Respondent: ESSENTIAL ENERGY Ninth Respondent: TRANSGRID