Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council

INTRODUCTION 1 The application in this matter was lodged in the National Native Title Tribunal ("the Tribunal") on 12 December 1997. The applicants were Lorna Kelly, Linda Vidler and Yvonne Graham. The applicants were at that time represented by the New South Wales Aboriginal Land Council. They claimed to hold title to certain land in the location of Byron Bay, New South Wales, with '[t]hose members of the Arakwal people of the Bundjalung Nation who are affiliated with the area which includes the land which is the subject of this application." 2 The land covered by the application was described as follows:

+"Commencing at the north west corner of portion 218 Shire of Byron, Parish of Byron, County of Rous, extending north to the southern boundary of Lighthouse Road, extending north east following the southern boundary of Lighthouse Road to the north western boundary of Tallow Beach Road, extending south east following the southern boundary of Tallow Beach Road to the eastern boundary of portion 218, extending south following the eastern boundary of portion 218 to the south east corner of portion 218, extending south following the eastern boundary of MS 691 Gfn Parish of Byron, County of Rous for 20 metres, then extending west to the western boundary of MS 691 Gfn Parish of Byron, County of Rous then extending north to the point of commencement." 3 The application indicated that no freehold land was intended to be claimed by the application. 4 On 18 February 1998 the Tribunal was advised by the New South Wales Aboriginal Land Council that the applicants did not intend to include in their application crown road reserve. The Tribunal was asked to note the following amendment: "The area of the road reserve to the north of lot 218 to be withdrawn from the application." 5 The Tribunal joined the following as parties to the application: (1) Minister for Land and Water Conservation for the State of New South Wales; (2) New South Wales Aboriginal Land Council; and (3) Telstra Corporation Limited 6 By reason of the transitional provisions contained in Part 3 of Schedule 5 of the Native Title Amendment Act 1998 (Cth) ("the Amendment Act"), the application was deemed to have been made to the Federal Court on 30 September 1998. On 16 March 1999 a Notice of Appearance were filed in the Court by the Minister for Land and Water Conservation for the State of New South Wales in his capacity as State Minister under the Native Title Act 1993 (Cth) ("the Act"). On 27 August 1999 a notice of appearance was filed in the Court on behalf of the applicants, including Yvonne Graham, who was described in the notice as deceased. It appears that this document was treated by the Court as a notice of the appointment of a solicitor (see Order 45 r 5 of the Federal Court Rules). No order has been sought or made under O 6 r 10 of the Federal Court Rules or otherwise to remove Yvonne Graham (deceased) as a party to the proceeding. However, her name is not included in the heading of documents more recently filed in the Court. On 9 March 2000 a notice of change of solicitor was filed in the Court giving notice that Blake Dawson Waldron now acted as the solicitors for Telstra Corporation Limited. It appears that the New South Wales Aboriginal Land Council has not filed a notice of appearance in the Court. However, it and the other parties identified above have been represented at the direction hearings conducted by the Court. 7 The application was referred to the Tribunal for mediation under s 86B of the Act by the Registrar of the Court on 26 November 1998. 8 In October and November 2000 there was correspondence between the Court and the solicitor for the applicants as to the proper description of the claimant group. Agreement was reached that the claimant group would be described as the Byron Bay Bundjalung People. Nonetheless documents subsequently filed in the proceeding describe the applicants in the proceeding as "Lorna Kelly and Linda Vidler on behalf of the Arakwal People". It appears that the Arakwal People are the sub-group, tribe or estate group of the Bundjalung nation encompassed by the description "the Byron Bay Bundjalung People". On 2 October 2001 I made an order giving the applicants leave to amend the description of the applicants in the title of the proceeding. That leave has not been exercised. 9 Between 27 September and 2 October 2001 each of the parties filed in the Court a signed copy of a document entitled "Agreement on terms of order pursuant to s 87 of the Native Title Act 1993". The substance of the document is in the following terms: "Whereas: A. The applicants have brought Native Title Determination Application NC 97/36 (NG 6088/98) ("the application") in respect of land and waters therein described. B. The applicants, the State of New South Wales, NSW Aboriginal Land Council and Telstra Corporation Limited ("the Parties") have reached an agreement contained in the registered Arakwal indigenous land use agreement (NIA 2001/001) as to the terms of a determination of native title to be made in relation to the lands the subject of application NC 97/36 (NG 6088/98) in the form of the order annexed hereto. The parties herewith agree: That the Court be requested to determine the proceeding in respect of the determination area by making an order in or consistent with the form of order annexed hereto." The form of order annexed to the agreement is as follows: "The Court Notes: A. The applicants have brought Native Title Determination Application NC97/36 (NG6088/98) ("the application") which covers the land the subject of the proposed determination. B. The applicants, the State of New South Wales, NSW Aboriginal Land Council and Tesltra Corporation Limited ("the Parties") have reached an agreement contained in the registered Arakwal indigenous land use agreement (NIA2001/001) as to the terms of a determination of native title to be made in relation to the lands the subject of application NC97/36 (NG6088/98). C. The Arakwal indigenous land use agreement (NIA2001/001) provides for the surrender of native title to the State of New South Wales for the land the subject of Native Title Determination Application NC97/36 (NG6088/98). D. The Parties have agreed to make application to the Federal Court of Australia for a consent order for a determination that native title does not exist in relation to the determination area, as defined by this Order. THE COURT ORDERS, DECLARES AND DETERMINES BY CONSENT THAT: 1. Native title does not exist in the land the subject of native title determination application NC97/36 (NG6088/98). 2. Each party shall be liable to pay their own costs arising from the proceedings." 10 On 2 October 2001 the applicants filed in Court a document entitled "Register of Indigenous Land Use Agreements". This document, although not certified in any way, appears to be an extract from the Register of Indigenous Land Use Agreements established and kept by the Native Title Registrar under s 199A of the Act. The document records that on 28 August 2001 an Indigenous Land Use Agreement ("the Agreement") with the short name "Bundjalung of Byron Bay (Arakwal)" was certified. 11 Also filed in Court on 2 October 2001 was a copy of the application for the registration of the Indigenous Land Use Agreement referred to above. The application discloses that the parties to the agreement are: Richard Sanderson Amery, Minister for Land and Water Conservation for the State of New South Wales as State Minister under the Native Title Act 1993 (Cth); The Arakwal Aboriginal Corporation; Robert John Debus, The Minister for the Environment; Mr Brian Gilligan, Director-General of the National Parks and Wildlife Service; Lorna Kelly on behalf of the Arakwal People; Linda Vidler on behalf of the Arakwal People; Tweed Byron Local Aboriginal Land Council; NSW Aboriginal Land Council; and Cape Byron State Recreation Area Trust 12 The Indigenous Land Use Agreement forms part of the application for registration. It describes the land in respect of which native title is claimed by the applicants as "the National Park Land, Iron Bark Avenue Land and the Paterson Street Land." 13 Clause 2 of the Agreement identifies the main objects of the Agreement as follows:. "2.1 The main objects of this Agreement are that: 2.1.1 the National Park Land be created as the Arakwal National Park; 2.1.2 the Iron Bark Avenue Land be transferred to the Arakwal Corporation; 2.1.3 there be an opening of an access road between the Iron Bark Avenue Land and the Iron Bark Avenue; 2.1.4 the NPWS shall consult to develop a proposal to recommend to the Governor to dedicate land in the Taylor's Lake Area as a nature reserve; 2.1.5 the Cottage at the Pass is available as accommodation to the Registered Native Title Claimants pending the Iron Bark Avenue being developed for residential occupation; 2.1.6 the Cape Byron State Recreation Area Agreement is validated to the extent of any invalidity; and 2.1.7 the Paterson Street Land be transferred to the Arakwal Corporation." 14 Subclause 12.1 of the Agreement provides: "12 Paterson Street Land 12.1 To enable the fee simple estate in the Paterson Street Land, that was transferred to the TBLALC [the Tweed Byron Local Aboriginal Land Council] pursuant to the Cape Byron State Recreation Area Agreement, to be transferred by the TBLALC to the Arakwal Corporation, in accordance with that Agreement: (a) the State Minister agrees to accept from the Registered Native Title Claimants a surrender to the Crown of any native title rights and interests they may hold in that land; (b) the Registered Native Title Claimants surrender to the Crown any native title rights and interests they may hold in that land and the surrender shall take effect upon the commencement of this clause; (c) in consequence of the surrender of native title the Registered Native Title Claimants, the State Minister, and the NSWALC [New South Wales Aboriginal Land Council], being parties to the native title determination application NC97/36 (NG6088/98) lodged in respect of the Paterson Street Land, have agreed that they will apply for the order set out in Schedule L to be made by the Federal Court, pursuant to subsections 87(1) and (2) of the NTA [the Act], that native title does not exist in relation to the Paterson Street Land; and (d) the TBLALC agrees to transfer the Paterson Street Land to the Arakwal Corporation within two (2) months of a determination from the Federal Court that native title does not exist in that land." 15 Schedule L to the Agreement contains minutes of the orders specified in [9] above. 16 Section 87 of the Act relevantly provides: "(1) If, at any stage of proceedings after the end of the period specified in the notice given under section 66: (a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to: (i) the proceedings; or (ii) a part of the proceedings; or (iii) a matter arising out of the proceedings; and (b) the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and (c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court; the Court may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case. (2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing." 17 The matters specified in pars 87(1)(a) and (b) are plainly satisfied. The power of the Court to make an order in, or consistent with, the order proposed by the parties is thus dependant on the Court being satisfied that such an order would be within the power of the Court. 18 No hearing has been held in respect of the native title application. The Court is thus not in a position to make a determination of whether or not native title exists in the relevant land. The applicants do not retreat from their claim that native title does exist in the land. However, in joining in the application for the Court to make orders in the terms agreed, the applicants, and the other parties, place reliance on cl 12 of the Agreement. That is, on the agreement of the applicants to surrender to the Crown any native title rights and interests that they may hold in the land, and the agreement of the State Minister to accept the surrender. 19 Section 24EA of the Act gives contractual effect to an agreement entered on the Register of Indigenous Land Use Agreements. It also provides that all persons holding native title in relation to the land in the area covered by the agreement, who are not already parties to the agreement, are bound by the agreement in the same way as the registered native title bodies corporate or the native title group, as the case may be. In the circumstances I am satisfied that it is within the power of the Court now to order that native title does not exist in the land the subject of this proceeding. That is because the State Minister has, pursuant to a valid and binding agreement, accepted the surrender of any native title that may have previously existed in the land. 20 It remains to consider whether it would be an appropriate exercise of the Court's discretion under subs 87(1) of the Act to make the orders sought. In Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229 Emmett J gave consideration to the particular factors which ought to be taken into account by the Court before being satisfied that it should make an order under s 87 of the Act. His Honour at [22] said: "The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes" (emphasis in original) 21 At [28]-[29] his Honour observed: "As I have already said, the Court must act judicially. That is to say, it cannot simply act capriciously. The Court must have regard to the objects and purposes of the Act. One important object and purpose to be found in the Act is resolution of issues and disputes concerning native title by mediation and agreement, rather than by Court determination. Detailed procedures are set out in the Act to achieve those objects. Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have an independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parents patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely." 22 His Honour did not intend to make an exhaustive list. As he pointed out at [33], in Ngalpil v State of Western Australia [2001] FCA 1140 Carr J took into account the possible effect of orders that might be made by the High Court in an appeal from the Full Court of this Court in State of Western Australia v Ward (2000) 99 FCR 316. In Congoo v State of Queensland [2001] FCA 868 Hely J noted at [17] "the benefits of negotiated settlements of native title claims, which otherwise have the potential to be lengthy, costly and divisive in the community." 23 I have had the benefit of reading the comprehensive agreement reached by the parties in this matter which has now been registered on the Register of Indigenous Land Use Agreements. I am satisfied that the parties have received appropriate legal advice and representation. I am conscious of the fact that the Act discloses an intention of encouraging and facilitating the resolution of native title claims by agreement. In my view, where such an agreement can appropriately be reached without requiring a determination of the issue of whether or not native title exists in particular land, this will often be in the public interest for the reasons identified by Hely J in Congoo v State of Queensland. I am satisfied that the interests of the community generally will be in no way prejudiced by the making of the orders sought and may, indeed, be advanced. I therefore conclude that it would be an appropriate exercise of the Court's discretion for the orders sought by the parties to be made. 24 Subject to the applicants taking appropriate steps to remove Yvonne Graham (deceased) as a party to the proceeding, and to amend the description of the claimant group in accordance with the agreement earlier reached with the Court, orders will be made in the terms of the orders on which the parties have agreed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.