NATIVE TITLE - consent determination - where the land subject to the present proceedings was excised from an earlier native title determination application - where that native title determination application was determined by the Court with the consent of the parties by way of a s 87 agreement: Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales - [2019] FCA 1915 - FCA 2019 case summary

Federal Court of Australia|2019-11-26|Before: Robertson J

Introduction 1 These proceedings under the Native Title Act 1993 (Cth) relate to an Application for a native title determination made on 15 August 2016. On 7 November 2019 an agreement under s 87 of the Native Title Act was filed in this Court. 2 The area claimed in the Application is located on the mid-north coast of New South Wales, in and around the Gumma Peninsula. The closest township is Nambucca Heads, which is across the Nambucca River to the immediate north of the Application area. To the west of the Gumma Peninsula is the Nambucca River and to the east Warrell Creek. The Gumma Islands are all situated on the Nambucca River. The Application area comprises six parcels of land and is approximately 1.4737 square kilometres. 3 The land and waters within the external boundaries of this native title determination application comprise the following six parcels of land: (a) Lot 554 in Deposited Plan 1072228; (b) Lot 555 in Deposited Plan 1072228; (c) Lot 556 in Deposited Plan 1072228; (d) Lot 557 in Deposited Plan 1072228; (e) Lot 558 in Deposited Plan 1072228; and (f) Lot 559 in Deposited Plan 1072228. 4 Three of the above parcels, (Lot 557, Lot 558 and Lot 559) form part of the Gumma Peninsula. The other three parcels of land are sand islands adjacent to the Gumma Peninsula on the Nambucca River. 5 The circumstances giving rise to the application are that the land subject to the present proceedings was excised from an earlier native title determination application (proceedings NSD 6054 of 1998). That native title determination application was determined by the Court with the consent of the parties on 15 August 2014 by way of a s 87 agreement: Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851. See further [12] of these reasons below. 6 In joint written submissions on behalf of the applicant and the first respondent, dated 7 November 2019, those parties submit that they seek to honour the s 87 agreement in Phyball through the determination of native title in these proceedings so that the applicant's native title will be recognised across the whole of the area as asserted in their original native title determination application. 7 The description of the native title holders in this Application is identical to those described in: (a) Phyball; (b) Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459; and (c) Pacey on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1916, in which a consent determination hearing was held at Sydney on the same day as these proceedings. 8 On 4 November 2019, I made an order by consent, pursuant to s 66B(l)(a)(ii) of the Native Title Act, that Colin Jarrett, Peter (Gary) Williams, Michele Donovan, Bridget Jarrett, Clive Joseph Robin Bryant, Annika Rotumah and Belinda Donovan jointly replace the applicant. That order was sought following the passing of Barry Phyball. 9 The respondents are the Attorney General of New South Wales as the State Minister for New South Wales; Nambucca Heads Local Aboriginal Land Council; and Austone Pty Limited.

Evidence 10 As I have mentioned, an agreement under s 87 has been filed. The parties have also filed two affidavits, one affirmed by Janet Rosemary Moss, solicitor employed in the office of the Crown Solicitor of New South Wales, on 7 November 2019, and one affirmed by Mishka Jade Holt, the Principal Solicitor of NTSCORP, also on 7 November 2019. 11 The affidavit of Ms Moss concerned the processes by which the Attorney General considered the connection material and tenure and how the present proceedings were resolved. Ms Moss also provided the background of the relationship between the earlier application (NSD 6054 of 1998) and the present native title determination application. 12 Ms Moss set out [9]-[12] of the earlier, 4 August 2014, s 87 agreement as follows: 9. The Parties acknowledge that, in the interests of reaching a timely resolution to this proceeding, the Applicant has agreed to amend the claim boundaries to confirm the exclusion and/or remove Gumma Peninsula Lots 554, 555 and 556 in DP1072228 and the Gumma Islands Lots 557, 558 and 559 in DP1072228. 10. The Parties acknowledge that the Gumbaynggirr People assert that they hold native title rights and interests in relation to the Gumma Peninsula Lots 554, 555 and 556 in DP1072228 and the Gumma Islands Lots 557, 558 and 559 in DP1072228 and that they reserve their right to file a native title determination application in respect of those areas within 2 years of the date of this agreement. 11. The First and Second Respondents agree that they will not oppose the making of such an application on the basis of any estoppel or abuse of process based on prior proceedings. 12. Further, the First and Second Respondents agree that, in the event of a native title determination application being made in relation to the Gumma Peninsula and/or the Gumma Islands by the Gumbaynggirr People (that is over part or all of Lots 554 to 559 in DP1072228), they will not require any further connection evidence than that which was provided in NSD6054/1998 to show connection to that land, provided that: (a) any such application is made within 2 years of the date of the Consent Determination; and (b) the native title rights and interests claimed are in same form as the Consent Determination. 13 Ms Moss deposed that the parcels of land described in the earlier s 87 Agreement at [9] comprised the whole of the land and waters the subject of the present native title determination application. Thus, Ms Moss continued, the claim area of the earlier application, in its original form, included the land or waters that are the subject of this native title determination application (otherwise referred to by Ms Moss as "Gumma Peninsula and Islands"), prior to that application being amended. That earlier application was amended on 11 August 2014 to give effect to the above passages of the earlier s 87 agreement. 14 Ms Moss also deposed that the approved determination of native title in relation to the earlier application included an order that the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 was to hold the determined native title on trust for the common law holders. 15 In the balance of her affidavit, Ms Moss deposed that the notification period and this matter commenced on 22 February 2017 and ended on 22 May 2017 and that there were no overlapping or competing native title determination applications over any part of the land or waters within the external boundaries of this application. 16 Ms Moss deposed that the connection material provided by the applicant was detailed in her affidavit affirmed on 4 August 2014 at [62]-[66], which affidavit was read, without objections, when the earlier application was determined. I shall treat that 2014 affidavit as being before me on this application. The process by which the Attorney General considered that the applicant's connection material in the earlier application was sufficiently credible is detailed in Ms Moss's 2014 affidavit at [7]-[60]. At that time, as detailed at [13] above, the present claim area was included within the earlier application and so was considered as part of the assessment. 17 Ms Moss deposed that as the applicant commenced this native title determination application within the period specified in the earlier s 87 agreement and complied with the terms of that agreement, there was no requirement for the Attorney General to reassess the applicant's connection material in order to determine whether it was sufficiently credible. This course was considered to be the most prudent, as well as the quickest, most inexpensive and efficient means of facilitating the just resolution of these proceedings. 18 Ms Moss deposed that the proposed resolution of these proceedings included the land and waters the subject of this proceeding and the earlier application. 19 Ms Moss deposed that the first respondent considered that the s 87 agreement represented a practical compromise between the differing positions of all the parties which accounted for access and continued use. 20 I accept the evidence of Ms Moss. 21 Ms Holt's affidavit deals first with the meeting on 18 and 19 October 2019. On those dates, NTSCORP convened a meeting of members of the Gumbaynggirr People native title claim group at the Valla Beach Tourist Park at 1 Regatta Drive, Valla Beach, New South Wales. 22 The meeting was convened to consider and make decisions in relation to a number of matters, including: (a) the authorisation of a new applicant for the application on the basis that Barry Phyball, one of the persons jointly comprising the applicant had passed away; (b) the authorisation of the proposed determination for the application; and (c) nominating Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC to be the prescribed body corporate to hold Gumbaynggirr People's native title rights and interests, once determined, on trust. 23 Ms Holt deposed to the notification of, preparation for and conduct of the meeting, which she attended along with Ms Natalie Rotumah (NTSCORP CEO, also performing the functions of Community Facilitator for this application), Dr Ken Lum (NTSCORP Manager Research), Dr Nicholas Skilton (NTSCORP Research Historian), and Tessa Sparks (NTSCORP Law Graduate). These staff assisted with the presentations and also with the logistical arrangements at the Meeting. 24 On 19 October 2019 the meeting was attended by approximately 45 Gumbaynggirr People native title claim group members. 25 At the meeting the following resolution was passed unanimously: The Gumbaynggirr People native title claim group nominates the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 to hold the Gumbaynggirr People's native title on trust and, following the determination of their native title, to perform the functions of a Registered Native Title Body Corporate set out in s 57(1) of the Native Title Act 1993 (Cth) and the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth). 26 The meeting also passed unanimously a resolution authorising the proposed s 87 agreement and consent determination for the application. 27 Ms Holt also gave evidence as to the Annual General Meeting of Members of the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC on 20 October 2019, at which she was present. On 5 November 2019, following the Annual General Meeting of Members, she received correspondence from Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC dated 5 November 2019 confirming that it: (a) accepted the nomination made by the Gumbaynggirr People native title claim group to hold their determined native title in trust for the common law holders pursuant to s 56(3) of the Native Title Act; (b) consented to be the prescribed body corporate for the purposes of s 57(1) of the Native Title Act; and (c) consented to perform the functions set out in s 57(1) of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). 28 I accept Ms Holt's evidence.

Consideration of the submissions of the applicant and the first respondent 29 The applicant and the first respondent submitted that the Court may make orders in accordance with the terms of the proposed consent determination, pursuant to s 87(2) of the Native Title Act, without holding a contested hearing. For the following reasons, I accept this submission. 30 I find that the following conditions have been met: (a) the notification period specified in s 66 of the Native Title Act has expired: s 87(1) of the Native Title Act; (b) an agreement has been reached between the parties on the terms of an order: s 87(1)(a) of the Native Title Act; (c) the agreement reached relates to the whole of the proceedings, a part of the proceedings or a matter arising out of the proceedings: s 87(1)(a)(i)-(iii) of the Native Title Act; (d) the terms of the agreement have been reduced to writing, signed by or on behalf of each of the parties, and filed with the Court: s 87(1)(b) of the Native Title Act; and (e) I am satisfied that orders in, or consistent with, the terms of the agreement would be within the power of the Court: s 87(1)(c) of the Native Title Act. 31 I also find that it is appropriate to make the orders proposed, and to do so without holding a hearing: ss 87(1A)(a) and (2) of the Native Title Act. 32 An order will be within the power of the Court if it is consistent with s 94A of the Native Title Act. That section requires the proposed orders to set out details of the matters mentioned in s 225 of the Native Title Act. I find that the proposed determination sets out each of those matters as required. 33 The applicant and the first respondent consider that the agreement to resolve proceedings by consent has been entered into freely, without duress, fraud or misrepresentation, referring to Nangkiriny v State of Western Australia [2002] FCA 660; 117 FCR 6 at [14]. All the parties to these proceedings have been legally represented and the applicant and the first respondent consider that the other parties have obtained, or had the opportunity to obtain, independent legal advice. Further, the parties have sought and obtained the benefit of Court annexed mediation to assist the parties to resolve issues in dispute without the need for judicial determination. The applicant and first respondent submitted that the parties have acted in good faith to reach a negotiated settlement of the proceedings. I accept these submissions. 34 The s 87 agreement requires: (i) the Applicant, the First Respondent, the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC, the Minister administering the Crown Land Management Act 2016 (NSW) and the Minister administering the National Parks and Wildlife Act 1974 (NSW) to negotiate an indigenous land use agreement which is intended to provide for the transfer of Lots 554 and 556 in Deposited Plan 1072228 to the RNTBC in exchange for: (a) the validation of certain classes of future acts in the Gaagal Wanggaan (South Beach) National Park; and (b) full and final compensation for any compensable past, intermediate or future acts in the Application Area; (ii) Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 and Austone Ply Ltd (the Third Respondent) have made a licence agreement in relation to ongoing operations on Lot 554 in Deposited Plan 1072228 which will come into effect when Lot 554 in Deposited Plan 1072228 is transferred Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC; (iii) Nambucca Heads Local Aboriginal Land Council (the Second Respondent) has agreed with Austone Pty Ltd (the Third Respondent) the terms of a licence agreement under which Austone Ply Ltd will have a right of access across Lot 555 in Deposited Plan 1072228, which licence agreement, when executed, will have effect when the licence referred to in sub-paragraph (b) has effect; and (iv) Nambucca Heads Local Aboriginal Land Council (the Second Respondent) has agreed the terms of a deed of agreement with Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC ICN 8095 which, when executed, will give Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC access rights across Lot 555 in Deposited Plan 1072228 when Lot 554 in Deposited Plan 1072228 is transferred to Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC. 35 The applicant and the first respondent have agreed to use their best endeavours to finalise the indigenous land use agreement referred to in paragraph (1)(a) of the extract at [34] above within 12 months of the determination. 36 The applicant, on behalf of the Gumbaynggirr People, has agreed that the Gumbaynggirr People (represented through the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation) will not make a claim against the first respondent for the costs of the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation in negotiating the indigenous land use agreement referred to above. 37 The s 87 agreement and the proposed determination recognises that the Gumbaynggirr People, as the common law holders, have native title rights and interests in the land and waters in the claim area. The Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation, which is the same registered native title body corporate as in Phyball, will hold the determined native title rights and interests on trust for the Gumbaynggirr People. 38 The terms of the determination to be made by consent are that native title has been extinguished in relation to part of the determination area and that native title exists in relation to another part of the determination area. 39 First, the parties seek a determination that native title has been wholly extinguished. The parties contend that the basis for that aspect of the proposed determination is that the two relevant parcels of land (Lots 554 and 556 in Deposited Plan 1072228, which are listed in Schedule Two of the proposed determination) were previously subject to Special Lease 1953-15 Kempsey. That Special Lease is agreed by the parties to be a "Scheduled interest" for the purposes of the definition of "previous exclusive possession act" in s 23B(2) of the Native Title Act. Accordingly, subject to what follows regarding s 47B, the parties agree, and I find, that native title has been extinguished in those two parcels. 40 The parties referred to Roberts on behalf of the Widjabul Wia-Bal v Attorney General of New South Wales [2019] FCA 1158, in which Rangiah J held that s 47B of the Native Title Act had no application to land the subject of the permissive occupancies considered in that case. The decision in Widjabul is currently the subject of an appeal to the Full Court. The applicant considers that the proposed determination, if made, might later be varied under s 13 of the Native Title Act if the applicant's appeal, in relation to permissive occupancies, is upheld: this is reflected in clauses 6 and 7 of the s 87 agreement. For present purposes, however, the applicant and the first respondent have agreed that there is no parcel of land in the application area to which s 47B of the Native Title Act applies. 41 Second, the parties seek a determination that native title is to be recognised in the remainder of the determination area, comprising: (a) Lot 555 in Deposited Plan 1072228; (b) Lot 557 in Deposited Plan 1072228; (c) Lot 558 in Deposited Plan 1072228; and (d) Lot 559 in Deposited Plan 1072228. All the above parcels of land in which native title is to be recognised are held by Nambucca Heads Local Aboriginal Land Council. The parties agree that s 47A of the Native Title Act applies to these parcels. 42 I note that, in accordance with the conditions stipulated in the preceding s 87 agreement for the respondent parties to accede to the present application without requiring further connection material, the native title rights and interest claimed in these proceedings are identical to those determined in Phyball. 43 I find that the draft s 87 agreement and the proposed determination was approved at the meeting on 18 and 19 October 2019 and that the Gumbaynggirr People native title claim group authorised the Applicant to consent to the proposed determination. 44 I find that the requirements of s 56 of the Native Title Act have been met and I determine that the native title is to be held in trust by the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation, the same registered native title body corporate as in Phyball, which has been nominated to be the prescribed body corporate for the purposes of s 57(1) of the Native Title Act and to act as trustee for the Gumbaynggirr People who are the common law holders of the native title rights and interests and to perform the functions set out in s 57(1) of the Native Title Act and the Native Title (Prescribed Bodies Corporate) Regulations.

Conclusion and orders 45 For these reasons I make the orders in the form set out in the proposed determination, without holding a hearing. I congratulate the parties and their advisers. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Native Title (Prescribed Body Corporate) Regulations 1999(Cth)

Native Title Act 1993(Cth)ss 23B, 47A, 47B, 57

The Original Application (Proceeding NSD 6054 of 1998) A. On 16 December 1996, Stanley Marshall, Eileen Marshall, Phoebe Mumbler and Jessica Williams made a native title determination application on behalf of the Gumbaynggirr People in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth) to the Federal Court of Australia (proceeding NSD 6054 of 1998) (the "Original Application"). B. The Original Application area included: (1) part of the land and waters of what is now known as the Gaagal Wanggaan (South Beach) National Park; and (2) the land and waters of Gumma Peninsula and the Islands. C. The applicant for the Original Application, the Attorney General of New South Wales ("Attorney General") and Unkya Local Aboriginal Land Council (being the Second Respondent in the Original Application) entered into an agreement under section 87 of the Native Title Act 1993 (Cth) (the "Original Section 87 Agreement") allowing for a determination of native title to be made in the Original Application with the following relevant conditions: (1) the Original Application was to be amended to explicitly exclude and/or remove Lots 554, 555, 556, 557, 558 and559 in Deposited Plan 1072228 (otherwise referred to in the Original Section 87 Agreement as the "Gumma Peninsula and Islands"); and (2) the respondents to the Original Application would not oppose the making of an application for a determination of native title by the Gumbaynggirr People over the Gumma Peninsula and Islands if: (i) such an application was made within two years of the determination of the Original Application; and (ii) the native title rights and interests claimed were in the same form as the consent determination in the Original Application. D. The Original Application was amended on 8 August 2014 to give effect to the agreement. E. On 15 August 2014, Justice Jagot made orders in relation to the Original Application giving effect to the Original Section 87 Agreement and determining native title by consent in Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851. The approved determination of native title included an order that the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation RNTBC is to hold the determined native title on trust for the common law holders.

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