Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales

BETWEEN: BARRY PHYBALL, PETER GARY WILLIAMS, LARRY KELLY, COLIN JARRETT, MICHELE DONOVAN, BRIDGET JARRETT, RICHARD PACEY, TREVOR BALLANGARRY, ADEN RIDGEWAY AND CONWAY EDWARDS ON BEHALF OF THE GUMBAYNGGIRR PEOPLE

JUDGE: JAGOT J DATE: 15 AUGUST 2014 PLACE: NAMBUCCA HEADS, NSW

REASONS FOR JUDGMENT 1 This is the second determination, by consent, of the existence of native title in New South Wales which has occurred in the last 12 months. Before December 2013, there had been only two such earlier determinations since the commencement of the relevant legislation, the Native Title Act 1993 (Cth) (the NTA), on 1 January 1994. While it cannot yet be said that the progression of matters in the native title list in New South Wales wholly reflects the overriding objective of civil procedure prescribed by s 37M of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), to facilitate the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible, the fact that the same number of consent determinations will have been achieved in the past 12 months as previously occurred in the past 18 years indicates that parties are now beginning to apply the common sense, practicality, proportionality, and flexible, constructive and creative thinking about achievable outcomes essential to the just resolution of native title claims in this State. 2 Despite this, I repeat something I said in 2013, in Bandjalang People No 1 and No 2 v Attorney General of New South Wales [2013] FCA 1278, because I consider it must never be forgotten by parties to proceedings of this kind. It is that the passing of more than seventeen years between the making of a claim for native title and its resolution is never to be accepted as satisfactory. There is no native title claim so complex, or so bedevilled by seemingly intractable issues, which can justify such a delay. Not even this matter, which raised numerous challenges for the parties which they have overcome by the application of those essential qualities I have identified, can justify delay of this magnitude. While right to be proud and pleased with the outcome that has been reached by the dedicated efforts of all those involved in making the proposed consent orders a reality, the fundamental truth that justice delayed is also justice denied should never be overlooked and must guide our efforts in respect of the resolution of future applications of the present kind. 3 This said, let me record the essential facts. 4 Between 1984 and 1995 the Nambucca Heads and Unkya Local Aboriginal Land Councils (the LALCs), constituted under the Aboriginal Land Rights Act 1983 (NSW), with the support of the Gumbaynggirr People, made several land claims over islands and areas of land in Warrell Creek and the Nambucca River on the mid North Coast of New South Wales under that legislation. Subsequent negotiations between the LALCs and the State of New South Wales, in the context of these claims, led to an agreement in 2002 for the establishment of a national park in the Warrell Creek/South Beach area, the Gaagal Wanggaan (South Beach) National Park, to be jointly managed by the LALCs and the State, with the majority of the remaining land to be be transferred to the Nambucca Heads LALC (and which, in 2011, became the Gumma Indigenous Protected Area). 5 Against this evolving background, on 16 December 1996, the Gumbaynggirr People lodged their native title claim in the National Native Title Tribunal over much of the same area. Unsurprisingly, there is significant overlap between the Gumbaynggirr People who filed the native title claim and the membership of the LALCs. The claim was notified between 18 June and 18 August 1997, and accepted for registration under Pt 7 of the NTA on 9 November 1999. 6 Amendments to the claim in 1998, 1999 and, most recently, on 8 August 2014 confine the land and waters claimed by the Gumbaynggir People in this proceeding and the subject of the determination to part of the area of the Gaagal/Wanggaan (South Beach) National Park. There are no overlapping or competing claims to any part of the land or waters the subject of the agreement between the parties and the proposed consent orders and no indigenous or other respondents who oppose the claim of the Gumbaynggirr People. 7 Today the Court will give effect to the agreement of the parties that recognises the existence of the Gumbaynggirr People's native title rights in those lands and waters. This will be the first determination of native title over land owned by LALCs in New South Wales and the first over a jointly managed national park in this State. 8 It is convenient to return now to the call for common sense, practicality, proportionality, and flexible, constructive and creative thinking about achievable outcomes in native title matters. As is appropriate, an affidavit of Janet Rosemary Moss (the solicitor within the office of the Crown Solicitor of New South Wales with the carriage of this matter) affirmed on 4 August 2014, recounts the procedural history of the matter. That history suggests that the application of these qualities of common sense, practicality, proportionality, and flexible, constructive and creative thinking from the outset might well have avoided the gross and unacceptable delay which has burdened the parties, the Court and the public of New South Wales in the reaching of a resolution acceptable to all parties. Four affidavits accompanied the Gumbaynggirr People's amended application that was filed in September 1999. More formal connection material in the form of an expert anthropological report and four further affidavits were provided to the State in 2002. The State's assessment of this material raised a number of issues. Over the next eight years, and it is here that I pause to mention again that justice requires conduct proportional to outcomes, a further 33 affidavits, one witness statement, nine expert reports, a site map, and volumes of source materials and field notes were provided by the Gumbaynggirr People to the State. By October 2009, following an assessment of the Gumbaynggirr material by not only the State's in-house researchers, but also an independent external expert and both junior and senior counsel of this vast amount of material, the matter remained unresolved. Deputy President Sosso of the National Native Title Tribunal convened mediation on country involving three days of evidence by Gumbaynggirr witnesses in the presence of the State's lawyers. On 3 November 2010, almost fourteen years from the day the claim was first made, the State informed the Gumbaynggirr People of its preparedness to resolve the claim through negotiation of an indigenous land use agreement and consent determination. There can be no doubt that this process ensures that I can be satisfied that the parties have freely entered into their agreement for the determination of native title on an informed basis and that the State, as the guardian of the public interest, has made exhaustive efforts to protect those interests. Despite this, it is difficult not to conclude that the enormous resources and extraordinary length of time involved in this process could have been avoided, in large part, by the bringing to bear at an earlier time of a focus on the outcomes sought to be achieved and the application of common sense, practicality, proportionality, and flexible, constructive and creative thinking about how those outcomes might properly be accommodated and achieved. 9 Native title claims, in common with most litigation but perhaps also particularly given their character, run the risk of the consuming of resources and time well beyond what is reasonable given that the overriding purpose of the civil practice and procedure provisions of the Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (s 37M of the FCA Act). Recognition of this fact, and of the need for the kind of focus and approach which I have described, is essential to guard against the repetition of examples such as the present case, spanning not years but decades. The risk of extraordinary expense and inordinate delay highlights the need for a provision such as s 37M and for vigilance in its application to avoid injustice not only to the parties but to other litigants and the public at large who rightly expect the proper use of public resources of which courts form part. 10 None of this diminishes the significance of the agreement the parties have reached, not only for the Gumbaynggirr People and the Local Aboriginal Land Councils, but also the State of New South Wales and the wider community. The rights of the Gumbaynggirr People will at last formally be accorded their proper recognition by the making of orders today to give effect to that agreement as contemplated by s 87 of the NTA which, by reason of the agreement, permits the Court to make a determination of native title and of other matters consistent with the terms of the agreement, without a hearing, if the Court considers it appropriate to do so. Needless to say, for the reasons already given and as will be further discussed, I do consider it appropriate to do so in the circumstances recorded above. Certain procedural requirements condition the power of the Court. By s 87(1) of the NTA, the Court may make such orders if, at any stage after the end of the period specified in the notice given under s 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. 11 In this case, as mentioned, the notice period under s 66 ended on 18 August 1997. An agreement in writing signed by or on behalf of the parties was filed on 4 August 2014. This agreement includes not only the proposed consent determination but a number of other matters including a shared intention to continue negotiations towards an indigenous land use agreement that will "give the parties greater certainty and confidence in relation to the exercise of their respective rights and obligations" in the determination area, a regime regulating the use of firearms, and shared intentions to use best endeavours to work with the board of management of the Gaagal/Wanggaan (South Beach) National Park to finalise a plan of management for the park. I am satisfied that an order in, or consistent with, the terms agreed would be within the power of the Court. Accordingly, all of the requirements of s 87 of the NTA are met. 12 Section 94A of the NTA requires that an order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in s 225. 13 Section 225 provides that: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that land or waters in the determination area are not covered by a non-exclusive agricultural lease or non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 14 The expression native title or native title rights and interests is defined in s 223 of the NTA to mean the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognisable by the common law of Australia. 15 The fact that a determination of native title operates to bind not just the parties to the proceeding but all people in the Australian community underlines the importance of the Court's consideration of the source of the power and the appropriateness of making the orders sought: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at 114; [2001] FCA 1229 at [22]. 16 In King (on behalf of the Eringa Native Title Claim Group) v South Australia (2011) 285 ALR 454; [2011] FCA 1386, Keane CJ spoke of the Court's regard to the processes undertaken by the relevant State or Territory in these terms (at [19]): More recently, the Court has been prepared to rely upon the processes of the relevant state or territory about the requirements of s 223 being met to be satisfied that the making of the agreed orders is appropriate. That is because each state and territory has developed a protocol or procedure by which it determines whether native title (as defined in s 223) has been established. It acts in the public interest and as the public guardian in doing so. It has access to anthropological, and where appropriate, archaeological, historical and linguistic expertise. It has a legal team to manage and supervise the testing as to the existence of native title in the claimant group. Although the court must, of course, preserve to itself the question whether it is satisfied that the proposed orders are appropriate in the circumstances of each particular application, generally the court reaches the required satisfaction by reliance upon those processes. 17 North J in Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474 at [36]-[37] similarly said: The Act [NTA] is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. [37] In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660; Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001 FCA 1229. 18 My conclusion that it is appropriate to make the orders sought is consistent with these principles. 19 Sections 55 and 56 of the NTA require that the Court determine whether the native title is to be held in trust and, if so, by whom. In this instance the Gumbaynggirr People, as native title holders, have nominated the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation to hold their native title on trust and to perform the functions set out in s 57(1) of the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). The Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation has provided its written consent to the nomination. The requirements of ss 55 and 56 of the NTA, accordingly, are also satisfied. 20 Agreement having been reached between all parties and all substantive and procedural requirements having been met, orders should be made which recognise the native title rights and interests of the Gumbaynggirr People in accordance with the proposed consent determination. I congratulate the parties and, in particular, the Gumbaynggirr People for the achievement which the orders to be made today embody. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.