Expert reports and related material:
(1) a "Join the Dots" table;
(2) anthropological report for Byron Bay Bundjalung native title determination application, prepared by NTSCORP Limited Research Anthropologist, Alexandra Crowe dated 20 December 2013;
(3) anthropological report for Byron Bay Bundjalung People Native Title Determination Application NSD 6020/2001, including Maps, Historical Sketches, and Family Photographs, prepared by Dr Frank McKeown of McKeown Ygoa & Associates dated 1 October 2004;
(4) anthropological report for Byron Bay Bundjalung People Native Title Determination Application NSD 6020/2001, including a Supplementary Brief on the Process of Decision Making, prepared by Dr Frank McKeown of McKeown Ygoa & Associates dated 6 April 2005;
(5) anthropological report for Byron Bay Bundjalung People Native Title Determination Application NSD 6020/2001, prepared by Dr Frank McKeown of McKeown Ygoa & Associates dated 3 February 2006;
(6) historical report for Byron Bay Bundjalung native title determination application NSD6020/2001, including Birth, Death and Marriage Certificates, prepared by NTSCORP Limited Senior Research Historian, Dr Michael Bennett dated 20 December 2013;
(7) Bundjalung of Byron Bay Native Title Determination NSD6020/2001 Site Map and Site Map Legend dated 19 December 2013; and
(8) sample genealogies, dated 18 December 2013, for:
(a) Norman Graham;
(b) Brian Kelly;
(c) Leon Kelly;
(d) Paul King;
(e) Danza Vidler;
(f) Theresa Nicholls;
(g) Delta Kay;
(h) Yvonne Stewart (née Kay);
(i) Judith Davies (née Kay);
(j) Linda Vidler; and
(k) Lorna Kelly.
(9) Byron Bay Bundjalung credible evidence film dated December 2013.
The applicant served supplementary connection evidence dated 20 December 2014 comprising a Supplementary Byron Bay Bundjalung #3 Report (Bennett and Crowe) dated December 2014.
26 There is also an affidavit by NTSCORP's in-house anthropologist Ms Alexandra Donaldson (née Crowe), affirmed on 9 April 2019 which provides an overview of the anthropological basis for the consent determination.
27 That overview refers to the expert anthropological report provided in December 2013, and to the co-authored supplementary report with Dr Michael Bennett in December 2014.
28 Those anthropological reports contained Ms Donaldson's expert opinion on matters including:
(1) Bundjalung People of Byron Bay's laws and customs;
(2) Bundjalung People of Byron Bay's connection to country; and
(3) descent by members of the Bundjalung People of Byron Bay native title claim group from the original inhabitants of the area of land or waters subject to the application at sovereignty.
29 It is Ms Donaldson's opinion that:
(1) at the date of sovereignty and following, as non-Indigenous settlers came into the application area, there was a local landholding group of Aboriginal people whose members held rights in and had responsibilities for the land and waters subject to the application;
(2) members of this local landholding group at and immediately following settlement are described as the Bundjalung People of Byron Bay;
(3) Bundjalung People of Byron Bay are a part of the Yugambeh-Bundjalung society, a single society of people bound together by their ongoing observance of traditional laws and customs regarding language, local organisation, religious beliefs and practices, social organisation, and land and resource use;
(4) this society still functions in much the same way today as it did at sovereignty: as a network of geographically proximate local landholding groups whose shared acknowledgement of mutually accepted laws and customs both promotes and legitimates the Bundjalung People of Byron Bay land holding group's (as well as the other composite groups') claims to land. The rights and interests of these composite local landholding groups in land and water are generated from the YugambehBundjalung society's shared laws and customs; and
(5) the system of laws and customs currently observed are a continuation of the system of laws and customs which the Bundjalung People of Byron Bay observed at sovereignty.
30 It is also Ms Donaldson's opinion that the following description of Bundjalung People of Byron Bay is an accurate description of all the people who hold native title rights and interests in the area subject to the application and are the descendants of the same group who at sovereignty exercised and held rights and interests which have as their source a system of traditional law and custom which continues to be binding upon and observed by them.
31 That description is:
(1) those Aboriginal persons who
(a) are the biological descendants of the apical ancestor Bobby Bray, also known as King Bobby of Bumberbin; or
(b) are persons adopted in accordance with Byron Bay Bundjalung law and custom into the families of those persons described in (i), (including the biological descendants of any such adopted persons); and
(2) identify themselves as a Bundjalung person of Byron Bay; and
(3) are recognised as a Bundjalung person of Byron Bay by Bundjalung People of Byron Bay in accordance with their law and custom.
32 I accept the evidence of Ms Donaldson.
33 I accept the submission that, in summary, some of the traditional laws and customs are manifest in the following practices, laws, rules and customs which are acknowledged and observed by the Bundjalung People of Byron Bay, and the larger Yugambeh-Bundjalung society:
(a) rights to the claim area are acquired by the claim group by cognatic descent;
(b) rights to country are inalienable;
(c) observing restrictions on access to sites whether on the basis of gender, seniority, or otherwise;
(d) the ownership of stories or narratives such as that which relates to Nguthangalli and the Three Brothers, and the right to transmit them, which account for the presence of the Bundjalung People of Byron Bay on the land, their totems and beliefs in spirits;
(e) respect and responsibility for the flora and fauna (and totems) which reflect the Bundjalung People of Byron Bay's relationship of close kinship between land, people and the spirits. This is also reflected in rules relating to a prohibition on hunting certain animals that have spiritual significance and rules for land management;
(f) social rules relating to respect for elders, respect for country, appropriate resource use, sharing rules, ceremonial practices, outside relationships including those with the Yugambeh-Bundjalung regional society, and rules governing interpersonal relationships such as marriage and kinship;
(g) rules regarding identifying plants and animals that indicate that other species are available to be hunted or gathered;
(h) rules relating to sharing resources and a prohibition on wasting resources or depleting resources; and
(i) rules about country that include boundaries, dangerous places and safely mediating access and use of country by Bundjalung People of Byron Bay and strangers.
(Footnotes omitted.)
34 I accept the submission that the laws and customs of the Bundjalung People of Byron Bay, which they as part of a broader regional society acknowledge and observe, have had a continuous existence and vitality since sovereignty and therefore give rise to native title rights and interests under the Native Title Act. The laws and customs of the Bundjalung People of Byron Bay, which I have described, are traditional and amount to a normative system of shared laws and customs that applies to the claim group and unites them. The acknowledgment and observance of those laws and customs have continued substantially uninterrupted since sovereignty.
35 I note that the parties have agreed on the terms of the Determination to be made by consent in relation to the land or waters the subject of the application, being that:
(a) native title exists in relation to a part of the Determination Area (the "Native Title Area"); and
(b) native title has been extinguished in relation to another part of the Determination Area (the "Extinguished Area").
36 By order 2 of the Determination, it is to take effect upon the date that the indigenous land use agreement between the applicant, the Arakwal Corporation and the State (known as the "Cavanbah (Byron Bay) Arakwal Indigenous Land Use Agreement") is registered on the Register of Indigenous Land Use Agreements.
37 I accept that the Cavanbah (Byron Bay) Arakwal Indigenous Land Use Agreement is an important part of the compromise between the applicant and the State. It addresses the uncertainties expected to arise for the parties in relation to the exercise of native title and the co-existence of other non-native title rights and interests. The resolution of this claim by consent has allowed the parties to reach an agreement on other matters of importance that are not directly addressed through the court orders.
38 As to the Court's power in this respect see: Doyle on behalf of the Kalkadoon People #4 v Queensland (No 3) [2011] FCA 1466; Doctor on behalf of the Bigambul People v Queensland [2016] FCA 1447; Bullen on behalf of the Esperance Nyungar People v Western Australia [2014] FCA 197; and Cashmere on behalf of the Jirrbal People #1 v Queensland [2010] FCA 1090; 283 ALR 610.
39 I note that the native title rights and interests recognised in the Determination in relation to the land or waters in the Native Title Area described and depicted in the map attached to Schedule One to the Determination, as described in [5] of the Determination, are the non-exclusive, non-commercial rights to:
(a) enter, travel over and remain on the land or waters;
(b) take and use, for personal, domestic and communal purposes (including cultural purposes), the natural resources (other than water);
(c) 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;
(d) camp and erect temporary shelters and temporary structures for personal, domestic and communal purposes (including cultural purposes);
(e) light fires for personal, domestic and communal purposes (including cultural purposes), but not for the clearance of vegetation;
(f) engage in cultural activities, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death including burials where permitted by the laws of New South Wales on the land or waters;
(g) 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;
(h) teach the physical, cultural and spiritual attributes of places and areas of hunt for personal, domestic and communal purposes (including cultural purposes);
(i) hunt for personal, domestic and communal purposes (including cultural purposes);
(j) fish for personal, domestic and communal purposes (including cultural purposes);
(k) be accompanied by persons who, though not Native Title Holders, are:
(i) spouses, partners or parents of Native Title Holders, together with their children and grandchildren;
(ii) people whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies; and
(iii) people requested by the Native Title Holders to assist in, observe or record cultural activities, practices or ceremonies.
40 The native title rights and interests so described do not confer exclusive possession, exclusive occupation, exclusive use and enjoyment, or any right to control public access to, or use of, the land and waters, as provided in [7] of the Determination.
41 It is agreed that native title does not exist in minerals or petroleum, as provided in [6] of the Determination.
42 The rights and interests of the NSW Aboriginal Land Council, Jali Local Aboriginal Land Council and Tweed I Byron Local Aboriginal Land Council relating to undetermined land claims under s 36 of Aboriginal Land Rights Act 1983 (NSW) (see Schedule 5 of the Determination) include the right to have such claims determined.
43 In relation to s 225(a) of the Native Title Act, the Determination provides that the persons holding the native title are the Bundjalung People of Byron Bay as described in [4] of the Determination. The Court finds that the description provides a clear identification of the Bundjalung People of Byron Bay as a group and the means by which Bundjalung People of Byron Bay can be identified as native title holders.
44 As to s 225(b), the native title rights and interests are described in [5] of the Determination. The Court finds s 225(b) is satisfied.
45 As to ss 225(c)-(d), the Court finds that [6]-[10] of the Determination together with Schedule 5 of the Determination satisfy these paragraphs. They clearly identify all other interests in relation to the Determination Area and establish that, to the extent that there is an inconsistency between those other interests and the determined native title, the other interests continue to have effect and coexist with the native title rights and interests.
46 As to s 225(e), the native title rights and interests are clearly described as "non-exclusive" in [5] and [7] of the Determination and the Court finds that they therefore satisfy s 225(e).
47 I next turn to the requirements of s 56 of the Native Title Act. Under that section, one of the determinations that the Court must make is whether the native title is to be held in trust, and, if so, by whom. Section 56(2) sets out the steps the Court is to take in making the Determination, which include: (a) requesting a representative of the native title holders to indicate whether their title is to be held in trust by (i) nominating in writing a prescribed body corporate to be the trustee, and (ii) including with the nomination the written consent of the body corporate.
48 I refer again to the affidavit by Mishka Holt, the solicitor representing the applicant, affirmed on 11 April 2019. Annexed to Ms Holt's affidavit is the nomination by members of the claim group of the Arakwal Corporation to be the trustee of their native title and the Arakwal Corporation's acceptance of that nomination. On the basis of that evidence the Court determines, in accordance with s 56(2)(b), that the Arakwal Corporation is to hold the rights and interests from time to time comprising the native title in trust for the Bundjalung People of Byron Bay.
49 Being satisfied that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to so order, pursuant to s 87 of the Native Title Act the Court orders that there be a determination of native title in the terms set out in the Determination. Each party to the proceedings is to bear its own costs.