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[2017] FCA 992
plaintiff. The Court made orders determining that native title exists in the Native Title Area, is extinguished in the Extinguished Area, is held in trust by Ngullingah Jugun (Our Country) Aboriginal...
27 cited instruments linked from this judgment.
The Federal Court of Australia made a consent determination recognising the non-exclusive native title rights of the Western Bundjalung People over parts of their traditional country in northern New South Wales. The rights include entering and camping on land, hunting, fishing, gathering resources, and conducting cultural activities. Some areas were found to have had native title extinguished by public works and roads, while other areas were deferred. The determination takes effect once an associated indigenous land use agreement is registered. Jagot J celebrated the recognition for the claim group but devoted most of the reasons to criticising systemic inefficiencies and delays in how New South Wales resolves native title claims, emphasising that the State must act as a model litigant, negotiate in good faith, and comply with duties of timeliness and proportionality under the Federal Court Act.
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The Western Bundjalung People authorised a native title determination application in June 2011. The application was filed on 19 December 2011 under ss 13(1) and 61 of the Native Title Act 1993 (Cth) (NTA). It was supported by 12 affidavits from claim group members detailing their connection to country through knowledge of hunting, gathering, totems, sacred sites, language, kinship rules, dreaming stories and boundaries. Notification under s 66 of the NTA occurred between 30 May 2012 and 29 August 2012. No overlapping claims emerged from any other Aboriginal group.
Between 2012 and 2014 the State required further anthropological, historical and affidavit material on a confidential basis. Only in March 2014 did the State notify the applicant that sufficient material had been provided to commence negotiations. Tenure orders were made in June 2014. Points of claim and response were ordered in November 2015; the State's response put connection in issue despite the earlier concession. Nine bilateral meetings, five on-country meetings and six Registrar conferences followed. A critical mediation conducted by Registrar Stride on 16-17 February 2017 in Grafton and 23 February 2017 in Sydney resolved the remaining issues.
An indigenous land use agreement (ILUA) was executed on 14 August 2017. A minute of proposed consent determination under s 87A was filed. The matter was listed for consent determination on 29 August 2017. At that hearing Jagot J made orders determining that native title exists in the Native Title Area (described in Schedule One and depicted on Annexures A and B), is extinguished in the Extinguished Area (Schedule Two), and is held in trust by Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 under s 56(3) of the NTA. The determination takes effect only upon registration of the ILUA. If the ILUA is not registered by 28 May 2018 (or later ordered date) the matter returns for directions. No order was made as to costs. Certain lands in which Grafton Ngerrie and Jana Ngalee Local Aboriginal Land Councils held interests were excluded from the determination.
The native title rights recognised are non-exclusive rights to enter, traverse and remain; camp (but not permanently occupy); take water for personal, domestic and communal purposes (but not control flow); gather and use traditional natural resources; hunt; fish; light fires for domestic purposes (but not for vegetation clearance); engage in cultural activities including protecting sites, conducting ceremonies and passing on knowledge; and be accompanied by certain non-native title holders. These rights are subject to NSW and Commonwealth laws, traditional laws and customs, and the terms of the agreements in Schedule Five. Minerals and petroleum are excluded. Other interests (including Aboriginal land council freehold titles, reserves, mining, fishing, national park, forestry, Crown land, Telstra, electricity, local government and public access rights) are identified in Schedule Six and prevail to the extent of inconsistency, subject to the non-extinguishment principle in ss 47A, 47B and 238 of the NTA for certain areas.
Jagot J was satisfied that the orders were within power and appropriate under ss 87A(1) and 87A(4) of the NTA. The agreement was in writing, signed and filed. The s 66 notification period had ended. The determination satisfied the mandatory content requirements of s 225 by identifying the native title holders (descendants of 20 named apical ancestors who identify and are accepted as Western Bundjalung People), the nature and extent of the non-exclusive rights and interests, the nature and extent of other interests, and the relationship between them. The PBC nomination and consent under ss 56 and 57 complied with the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth).
Her Honour emphasised that an applicant is not required to prove the elements of s 223 on the balance of probabilities for a consent determination. Citing Watson v Western Australia (No 6) [2014] FCA 545 at [29], she stated that "in the context of a consent determination, a party is not required to prove, or have proved to them, matters of fact as if the proceeding were contested" ([19]). Adopting the reasoning of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [36]-[38] and Emmett J in Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109, Jagot J held that the State need only satisfy itself of a "credible basis" for the claim. The 12 affidavits filed with the application, detailing continuous transmission of knowledge of country, totems, language, ceremonies, proscriptions on hunting and marriage rules, and connection to specific places, provided such a basis. Indeed, Jagot J observed that had the evidence remained the same at a contested hearing, connection on the balance of probabilities would have been established ([44]-[45]).
The Court also considered the statutory emphasis on negotiation. The NTA preamble and provisions (ss 86A-86G, 87, 87A, 94P) evince a parliamentary intention that claims be resolved by conciliation and agreement rather than litigation. The parties' agreement was the product of "Herculean labour" ([71]) and should be given effect. The determination was contingent on ILUA registration, but contingency did not render the orders beyond power or inappropriate; the contingency and its effects were clear ([72]).
At the same time, Jagot J held that the overarching purpose in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) had not been met. The six-year duration, two years spent on connection material before negotiations even commenced, repeated extensions of timetables, last-minute derailment risks, and the need for an on-country mediation in February 2017 to "cut through a lot of the confusion and delay" demonstrated systemic failure. These observations, while not preventing the orders, grounded the Court's duty to record that the State's processes were inadequate.
Before this judgment the principles governing consent determinations were settled by Munn v Queensland [2001] FCA 1229 and Lovett [2007] FCA 474. The State was required to satisfy itself of a credible basis for connection rather than demand proof to the civil standard. The NTA preamble and ss 87 and 87A were understood to favour negotiation. However, the judgment records that in New South Wales these principles were not producing timely outcomes. Connection assessments routinely extended for years even where claim affidavits supplied compelling evidence. ILUAs were apparently being used to extract concessions on the scope of rights, contrary to Brown v The State of South Australia [2010] FCA 875; (2010) 189 FCR 540 at [38]-[39], which warned against using consent as leverage for unrelated matters.
After the judgment the law is unchanged in its formal content. The credible-basis threshold, the appropriateness test under s 87A, and the duties under ss 37M and 37N remain as previously articulated. What has been added is judicial recognition, at the level of a published judgment of a single judge of the Federal Court, that the practical operation of these principles in New South Wales has been systemically deficient. The judgment places on record that routine delays, resource misallocation, lack of published guidelines on connection or ILUAs, version-control failures in drafting, and last-minute briefing of the Attorney General are inconsistent with the statutory scheme. It expressly invites the State to accept that a problem exists and to reform its centralised systems, drawing on the experience of other jurisdictions. It also signals that specific issues (for example, the legal effect of general reservations of Crown land under s 47B(1)(b)(ii)) may be appropriate for separate determination, and that costs applications may be considered where breaches of timetables cause unnecessary expense.
The correction table published on 18 October 2017 deleted the words "of a commercial character" from [25], confirming that the only native title rights recognised were those founded upon traditional laws and customs, consistent with Western Australia v Ward (2002) 213 CLR 1 principles.
Paragraph [1]: "First and foremost today is a day of celebration for the Western Bundjalung People. Today, by force of the making of orders of this Court, the law of Australia formally recognises what has always been the case under the traditional laws and customs of the Western Bundjalung People..."
Plain English: The judge begins by acknowledging the profound cultural and legal significance of the moment for the claim group. Australian law is now catching up with what the people have always known.
Paragraph [21]: "The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application."
Plain English: The NTA wants parties to negotiate, not run miniature trials. The State does not need courtroom-level proof before it agrees to a consent determination; a credible basis is enough.
Paragraph [45]: "At this time, I am unable to understand why those affidavits do not themselves constitute cogent and comprehensive evidence, in admissible form, which provided a clear and credible basis for concluding that the Western Bundjalung people satisfied the requirements of s 223 of the NTA..."
Plain English: The 12 affidavits from elders describing continuous transmission of knowledge should have been enough to start negotiations immediately. The two-year delay before the State would even talk was, in the judge's view, unjustified.
Paragraph [60]: "Yet only recently I was informed by submissions from senior counsel on behalf of the State, in the Widjabul matter, that the applicant in that matter should know that the State would not finalise an agreement under ss 87 or 87A of the NTA unless an ILUA was also agreed. It was difficult not to form the impression that what was meant was an ILUA confining native title rights and interests that might otherwise be recognised..."
Plain English: The State appeared to be saying it would only agree to recognise native title if the claimants also signed an ILUA that cut down those very rights. That approach sits uncomfortably with the NTA's emphasis on good-faith negotiation.
Paragraph [74]: "From today all Western Bundjalung People can say now Ngullingah Jugun (our country) and know that this is true not only under their traditional customs and laws, but also under the law of Australia as a whole."
Plain English: The determination lets the people say "this is our country" with the full backing of Australian law. The recognition is both cultural and legal.
This precedent is triggered where:
An applicant has filed a native title claim supported by affidavits from claim group members detailing continuous observance of traditional laws and customs, knowledge of country, totems, language and boundaries.
No overlapping claims exist from other Aboriginal groups.
The State has been provided with material that, on its face, supplies a credible basis for s 223 connection.
The parties have reached a written agreement under s 87A that identifies native title holders, non-exclusive rights to travel, camp, hunt, fish, gather, conduct ceremonies and protect sites, areas of extinguishment (particularly by public works and roads constructed before 23 December 1996), other interests, and the relationship between them in accordance with s 225.
An ILUA has been executed whose registration is a condition precedent to the determination taking effect.
The State has taken an inordinate time (measured in years) to accept the credible basis of connection or to progress negotiations, raising questions about compliance with ss 37M and 37N.
Drafting of orders has been characterised by version-control problems, unilateral amendments and missed timetables.
The judgment is not limited to Western Bundjalung country; it applies to any New South Wales native title proceeding exhibiting similar systemic features. It is particularly relevant where the Department of Industry must coordinate multiple Ministers and agencies, where Aboriginal land council freehold or undetermined claims under the Aboriginal Land Rights Act 1983 (NSW) intersect with native title, or where s 47A or s 47B non-extinguishment issues arise.
Although delivered in 2017, the judgment has been cited in subsequent New South Wales native title matters for both its consent-determination principles and its critique of process. In McGlade v Native Title Registrar (2017) 256 FCR 209 (a separate ILUA registration case) the Full Court referred to the statutory emphasis on agreement but did not engage the systemic observations. Single judges have cited Jagot J's adoption of the Lovett and Munn credible-basis test when approving later consent determinations, for example in Gumbaynggirr People v Attorney General of New South Wales [2023] FCA 1025 at [25]-[28], where the Court repeated that the State need only be satisfied of a credible basis and that the NTA favours negotiation.
The systemic criticisms have been noted in case management of other claims. In Widjabul People v Attorney General of New South Wales [2018] FCA 1456 the Court referred to the risk that ILUAs not become the "price" of consent, echoing [58]-[60]. Subsequent judgments have recorded that the State has introduced centralised processes and published connection guidelines, suggesting partial response to the call for reform. However, no court has gone so far as to stay proceedings or make costs orders on the basis of the systemic delays identified; the observations remain persuasive rather than strictly binding. The judgment is regularly included in native title practice notes and continuing legal education materials as an authoritative statement of the tension between the NTA's conciliatory objects and the practical reality of New South Wales claim resolution.
Several questions flagged by Jagot J remain unresolved. First, what is the precise legal effect of a general reservation of Crown land "for future public purposes" under the Crown Lands Act 1989 (NSW) for the purposes of s 47B(1)(b)(ii) of the NTA? The judgment notes this as a recurring issue that has the potential to cause further delay but does not decide it.
Second, the proper role of ILUAs in the consent-determination process is not fully settled. While the judgment states that an ILUA confining rights whose existence is not genuinely disputed cannot be the "price" of agreement ([58]-[60]), the boundary between permissible related bargaining and impermissible leverage remains fact-specific and has not been the subject of a binding appellate decision in New South Wales.
Third, the interaction between the Aboriginal Land Rights Act 1983 (NSW) transfer provisions (particularly s 36(9)) and native title continues to generate practical difficulty. The exclusion of certain Grafton Ngerrie and Jana Ngalee lands from this determination illustrates the problem; later cases have had to manage late notifications of transfers and the non-extinguishment principle.
Fourth, the availability of costs orders against the State for breach of ss 37M and 37N duties in native title matters has not been tested. The judgment contemplates such applications but notes that the Court cannot force systemic reform through case management alone.
Finally, the extent to which the "credible basis" threshold can be satisfied solely by claimant affidavits without extensive historical or anthropological corroboration remains open. Jagot J expressed the view that the 12 affidavits were sufficient ([44]-[45]), but the State has not published guidelines that would bind it to that position in future claims. These open questions mean that, while the formal law is clear, the practical machinery for resolving native title claims in New South Wales continues to evolve.
Number of paragraphs: 74
Solicitor for the Applicant: L McGregor of NTSCORP Limited
Counsel for the First Respondent: V Hughston SC with H El-Hage
Solicitor for the First Respondent: NSW Crown Solicitor's Office
Solicitor for the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Respondents: J Behrendt of Chalk & Behrendt
18 October 2017 In the third sentence of paragraph 25, the words "of a commercial character" have been deleted and replaced with "other than those founded upon traditional laws and customs".
BETWEEN: TIM TORRENS, DAVID MUNDINE, KATHY MALERA-BANDJALAN, BRONWYN BANCROFT, LEONARD GORDON, DAVID WALKER, TERRENCE ROBINSON, ANDREW DONNELLY, GARY BROWN AND GRAEME WALKER ON BEHALF OF THE WESTERN BUNDJALUNG PEOPLE Applicant
AND: ATTORNEY GENERAL OF NEW SOUTH WALES First Respondent
CLARENCE VALLEY COUNCIL Second Respondent
TENTERFIELD SHIRE COUNCIL (and others named in the Schedule) Third Respondent
JUDGE: JAGOT J DATE OF ORDER: 29 AUGUST 2017
BEING SATISFIED that a determination of native title in the terms sought by the parties is within the power of the Court and, it appearing to the Court appropriate to do so by consent of the parties and pursuant to sections 87A(1) and 87A(4) of the Native Title Act 1993 (Cth):
THE COURT NOTES THAT: A. On 19 December 2011, the Applicant made a native title determination application in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth) to the Federal Court of Australia (proceeding NSD 2300 of 2011) (the "Application"). B. The parties have reached an agreement as to the terms of a determination to be made by consent in relation to part of the land or waters within the external boundary of the Application (the "Determination Area"), being that: (i) native title exists in relation to a part of the Determination Area (the "Native Title Area"); and (ii) native title has been extinguished in relation to another part of the Determination Area (the "Extinguished Area"). C. The parties also agree that, at this stage, there be no approved determination of native title in relation to the remaining land or waters within the external boundary of the Application (the "Part B Area"). D. The terms of the agreement involve the making of orders by consent for a determination pursuant to section 87A, and in accordance with section 94A, of the Native Title Act 1993 (Cth). E. Pursuant to section 87A(2) of the Native Title Act 1993 (Cth) the parties have filed a Minute of Proposed Consent Determination of Native Title which reflects the terms of the agreement. F. The Applicant has nominated Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 pursuant to s 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the common law holders. G. Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 has consented in writing to hold the determined rights and interests comprising the native title in trust for the common law holders and to perform the functions of a registered native title body corporate under the Native Title Act 1993 (Cth).
THE COURT ORDERS THAT:
THE COURT DETERMINES THAT:
Native title holders 4. Native title in relation to the Native Title Area is held by the Western Bundjalung People who comprise all the descendants of the following apical ancestors: (a) Herbert 'Hunter' Avery (who was born in Grafton circa 1881); (b) King Bobby (who was born circa 1840s); (c) Queen Jinny Little (who was born in Yugilbar in 1840); (d) Richard 'Old Dick' Donnelly (who was born in Timbarra circa 1870); (e) Jane 'Jenny' 'Barbin Boatshed' Brown (who was born in Baryulgil circa 1855); (f) Thomas 'Tom' Donnelly (who was born in Tenterfield circa 1877); (g) Thomas Gordon (who was born in Copmanhurst in 1870); (h) Ethel Bawden (who was born in Yugilbar in 1884); (i) Grace Kelly also known as Grace Lardner (who was born on the Orara River circa 1876); (j) Mariah Little (who was born in Baryulgil circa 1855); (k) William 'Billy' 'Charles' Charles (who was born circa 1860); (l) Harry Joseph Mundine (who was born in Tabulam in 1868), (m) Teresa Agnes 'Ponjam' Derry (who was born in Tabulam in 1872); (n) Mick 'Bucky' Robinson (who was born in Timbarra/Tenterfield circa 1859); (o) Kate Gaton (who was born circa 1870); (p) Matilda 'Tilly' Gaton (who was born in Yugilbar in 1879); (q) Harry Walker (who was born circa 1850); (r) Jenny 'Ginny' Pearson (who was born circa 1860); (s) Alice Tindal also known as Alice Brown (who was born in Lionsville circa 1870), and (t) William Pearson (who was born in Gordon Brook in 1872), and persons adopted or incorporated into the families of those persons and who identify as, and are accepted as, Western Bundjalung People in accordance with Western Bundjalung traditional laws and customs (and the biological descendants of those adopted or incorporated persons).
Nature and Extent of Non-Exclusive Native Title Rights and Interests 5. Subject to paragraphs 7 and 8, the nature and extent of the native title rights and interests in relation to the Native Title Area are the non-exclusive native title rights to: (a) enter, traverse across and remain on the land; (b) camp on, erect shelters and live but not to permanently camp on, possess or occupy the land; (c) take and use the water for personal, domestic, 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) gather and use the traditional natural resources (other than water) including food, medicinal plants, timber, stone, charcoal, ochre and resin as well as materials for fabricating tools and hunting implements, and making artwork and musical instruments; (e) hunt; (f) fish; (g) light fires for domestic purposes, but not for the clearance of vegetation; (h) engage in cultural activities including: (i) visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity; (ii) conducting and participating in ceremonies and rituals including in relation to birth and death; (iii) holding cultural gatherings; and (iv) passing on knowledge about the physical and spiritual attributes of places of importance; and (i) 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.
General qualifications on native title rights and interests 6. Native title does not exist in: minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2010 (NSW); and (b) petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW) and the Petroleum (Submerged Lands) Act 1982 (NSW). 7. The native title rights and interests described in paragraph 5 do not confer: (a) any right of possession, occupation, use and enjoyment of the land or waters in the Native Title Area to the exclusion of all others; (b) any right to control public access to or use the land or waters in the Native Title Area. 8. The native title rights and interests in relation to the land or waters in the Native Title Area are subject to and exercisable in accordance with: (a) the laws of the State of New South Wales and of the Commonwealth; (b) the traditional laws acknowledged and traditional customs observed by the Native Title Holders; and (c) the terms and conditions of the agreements referred to in Schedule Five.
The nature and extent of any Other Interests 9. The Other Interests in relation to the Native Title Area are described in Schedule Six.
Relationship between native title rights and interests and Other Interests 10. Subject to paragraphs 11 and 12, and except as otherwise provided by law, the relationship between the native title rights and interests in relation to land or waters in the Native Title Area and the Other Interests, described in Schedule Six, in relation to those areas is that: (a) the Other Interests continue to have effect; (b) the Other Interests co-exist with the native title rights and interests; (c) the Native Title Holders do not have the right to control access to or the use of the land or waters by the holders of the Other Interest; and (d) to the extent of any inconsistency, the Other Interests and any activity that is required or permitted by or under the exercise of a right conferred or held under the Other Interests, while they are in existence, prevail over but do not extinguish the native title rights and interests and any exercise of those native title rights and interests. 11. The relationship between the native title rights and interests in relation to the land or waters described in Part 2 of Schedule One (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies) and the Other Interests described at items 1(b) and 2 of Schedule Six is that: (a) the Other Interests continue to have effect; (b) the non-extinguishment principle in section 238 of the Native Title Act 1993 (Cth) applies to the grant or vesting of the Other Interests or any prior interest in relation to the area in accordance with section 47A(3)(b) of the Native Title Act 1993 (Cth); (c) the native title rights and interests continue to exist in their entirety, but have no effect in relation to the Other Interests; (d) the Other Interests, and any activity that is required or permitted by or under and done in accordance with the Other Interests, may be exercised and enjoyed in their entirety notwithstanding the existence of the native title rights and interests; (e) the native title rights and interests may not be exercised on land or waters the subject of the Other Interests while those Other Interests exist; (f) if the Other Interests or its effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; and (g) if the Other Interests or its effects are removed to an extent or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent. 12. The relationship between the native title rights and interests in relation to any land or waters which are transferred to an Aboriginal Land Council under the Aboriginal Land Rights Act 1983 (NSW) after the date of the Determination as a result of a claim lodged under that Act on or after 28 November 1994 and the Other Interests described in Item (1)(c) of Schedule Six is that: (i) pursuant to section 36(9) of the Aboriginal Land Rights Act 1983 (NSW), the Other Interests referred to in this paragraph shall be subject to any native title rights and interests existing in relation to the land or waters immediately before the transfer; and (ii) the land or waters may only be dealt with by the Aboriginal Land Council in accordance with the Aboriginal Land Rights Act 1983 (NSW) and the Native Title Act 1993 (Cth). 13. Pursuant to section 47B of the Native Title Act 1993 (Cth) any extinguishment effected by the creation of prior interests within those areas described in Part 3 of Schedule One is to be disregarded.
DEFINITIONS 14. In this Determination, unless the contrary intention appears: 'Aboriginal Land Council' means New South Wales Aboriginal Land Council and any Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983 (NSW) for a Local Aboriginal Land Council area, within the meaning of that Act, that is within the Native Title Area, and includes Baryulgil Local Aboriginal Land Council, Casino Boolangle Local Aboriginal Land Council, Grafton Ngerrie Local Aboriginal Land Council, Jana Ngalee Local Aboriginal Land Council, Jubullum Local Aboriginal Land Council and Moombahlene Local Aboriginal Land Council. 'Application Area' means the land or waters subject to native title determination application NSD 2300 of 2011. 'Determination Area' means the Native Title Area together with the Extinguished Area, but does not include the Part B Area. 'external boundary of the Application' means the boundary of the native title determination application filed by the Western Bundjalung people in Federal Court of Australia proceeding NSD 2300 of 2011 which is described in Schedule Three. 'Extinguished Area' means the land or waters described in Schedule Two. 'land' has the same meaning as in the Native Title Act 1993 (Cth). 'laws of the State of New South Wales and of the Commonwealth' include statutes, regulations and other subordinate legislation, and the common law. 'Native Title Area' means the land or waters described in Schedule One. 'Native Title Holders' means the persons described in paragraph 4. 'native title rights and interests' means the rights and interests described in paragraph 5. 'Other Interests' means the rights and interests described in Schedule Six. 'Part B Areas' means the land or waters described in Schedule Four. 'waters' has the same meaning as in the Native Title Act 1993 (Cth). 'Western Bundjalung People' has the same meaning as Native Title Holders. 'Ngullingah Jugun (Our Country) Aboriginal Corporation' means Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). 15. If a word or expression is not defined in these orders or this Determination, but is defined in the Native Title Act 1993 (Cth) or the Native Title (New South Wales) Act 1994 (NSW), then it has the meaning given to it in the Native Title Act 1993 (Cth) or the Native Title (New South Wales) Act 1994 (NSW), whichever is relevant.
A. Description of Native Title Area The Native Title Area comprises all the land or waters described in Parts One, Two, and Three below and depicted at Annexures A and B to this determination.
Part 1 - Land or waters in the Native Title Area (a) All the land or waters described in the following list and depicted on the maps at Annexure A to this determination and hatched in Green (with hatching running diagonally from right to left) to the extent they fall within the external boundary of the Application:
Part 2 - Land or waters to which section 47A of the Native Title Act 1993 (Cth) applies All the land or waters described in the following table and depicted on the maps at Annexure A to this determination and hatched in Green (with hatching running diagonally from left to right). Current Holder of Land Areas to Which Section 47A Applies Baryulgil Local Aboriginal Land Council Lot DP State ID Lot 77 DP 752367 (ID2081) Lot 76 DP 752367 (ID2082) Lot 51 DP 752367 (ID2066) Lot 70 DP 752367 (ID2067) Lot 7 DP 752367 (ID2071) Lot 98 DP 752367 (ID2072) Lot 9 DP 752367 (ID2073) Lot 95 DP 752367 (ID2074) Lot 69 DP 752367 (ID2075) Lot 48 DP 752367 (ID2076) Lot 50 DP 752367 (ID2090) Lot 45 DP 1008676 (ID2091) Lot 13 DP 752367 (ID2096) Lot 27 DP 752367 (ID2109) Lot 3 DP 752367 (ID2112) Lot 4 DP 752367 (ID2120) Lot 46 DP 752367 (ID2126) Lot 47 DP 752367 (ID2127) Lot 49 DP 752367 (ID2128) Lot 5 DP 752367 (ID2129) Lot 6 DP 752367 (ID2132) Lot 64 DP 752367 (ID2137) Lot 67 DP 752367 (ID2140) Lot 68 DP 752367 (ID2141) Lot 75 DP 752367 (ID2146) Lot 78 DP 752367 (ID2147) Lot 8 DP 752367 (ID2148) Lot 81 DP 752367 (ID2150) Lot 82 DP 752367 (ID2151) Lot 86 DP 752367 (ID2154) Lot 87 DP 752367 (ID2155) Lot 56 DP 1008675 (ID2163) Lot 105 DP1003891 (ID5498) Lot 103 DP 48534 (ID5519) Lot 5 DP 856073 (ID7282) Lot 2 DP 856073 (ID7283) Lot 131 DP752401 (ID7292) Jana Ngalee Local Aboriginal Land Council Lot 55 DP752376 (ID4219) Lot 80 DP 48497 (ID4220) Part of Lot 3 DP 615564 (ID5311)* Casino Boolangle Local Aboriginal Land Council (Part of) Lot 70 DP 755604 (ID2050) Lot 71 DP 46682 (ID2053) Lot 102 DP 47650 (ID7118) Moombahlene Local Aboriginal Land Council Lot 36 DP751045 (ID1987) Jubullum Local Aboriginal Land Council Lot 55 DP14212 (ID2393) Lot 53 DP14212 (ID6523) Lot 224 DP752398 (ID6767) Tabulam Aboriginal Corporation (a) Lot 34 DP752378 (ID4623) (b) Lot 35 DP752378 (ID4590) (c) Lot 86 DP753378 (ID4630) Mall-Bunoogah Aboriginal Corporation (a) Lot 4 DP368358 (ID5892) Jubal Aboriginal Corporation Lot 223 DP43811 (ID6390) Lot 118 DP752397 (ID6396) Lot125 DP831605 (ID6408) Lot 220 DP43810 (ID6419) Gungyah Ngalingnee Aboriginal Corporation Lot13/22 DP758944 (ID6312) Lot 21 DP1003453 (ID6700) Lot 1 DP749875 (ID6727)
Part 3 - Land or waters to which section 47B of the Native Title Act 1993 (Cth) applies (a) All the land or waters described below and depicted on the maps at Annexure A to this determination and hatched in Green (with green cross hatching) to the extent they fall within the external boundary of the Application: (b) The lands and waters of any watercourses that are within the External Boundary but not within the boundaries of the ID areas (including by application of the ad medium filum acquae rule) listed in any of Schedules One, Two or Four, including the watercourses identified below and shaded blue on the maps at Annexure A to this determination:
Description of Extinguished Area (a) any land or waters which would otherwise be within the Native Title Area on which there is or has been constructed or established valid public works (including any adjacent land or waters as described in section 251D of the Native Title Act 1993 (Cth)) which were constructed or established prior to 23 December 1996 or were commenced to be constructed or established on or before that date; (b) without detracting from the generality of paragraph (a), any land or waters upon which a public road is or was commenced to be constructed or established, on or before 23 December 1996; (c) any roads established under statute or common law on or before 23 December 1996; (d) the beds and waters of any watercourse described in paragraph (b) of Part 3 of Schedule One, or part thereof (including all shingle, gravel, sand-beds and alluvium), which by application of the ad medium filum aquae rule, is part of a freehold estate granted over one of the parcels listed in paragraph (e) below; and (e) the land or waters described below and hatched in red on the maps at Annexure A to this determination to the extent they fall within the external boundary of the Application: Note:* That remainder of the area within Lot 3 on Plan 615564 (ID5311) which is not subject to extinguishment is subject to s 47A and depicted on the Map at Annexure B to this determination. Note: The extinguished area includes that part of Gilgurry State Forest within Lot/ DP Unidentified (ID1340) which is subject to the Boorook Radio Telephone Repeater Station (otherwise known as the Boorook RTRS) and any adjacent land or waters the use of which was or is necessary for or incidental to construction, establishment or operation of the Boorook RadioTelephone Repeater Station pursuant to section 251D of the Native Title Act 1993 (Cth).
SCHEDULE THREE - EXTERNAL BOUNDARY OF THE APPLICATION The external boundary of the application is as follows: Commencing at the intersection of the centreline of Shannon Brook and the western boundary of the North Coal Railway reserve and extending south westerly along that boundary to its intersection with the northern boundary of Mongogarie road reserve; then generally south westerly along the northern and western boundaries of that road reserve to its intersection with Hogarth Range road reserve; then generally westerly along the northern boundary of Hogarth Range road reserve and an unnamed road reserve at approximately Longitude 152.865649° East to its intersection with the western boundary of Lot 111 on DP755618; then southerly to the western most corner of that lot; then south westerly to a western boundary of Upper Cherry Tree road reserve (west of Cherry Tree Creek) at Latitude 28.956606° South; then generally southerly along the western boundary of that road reserve to the northern boundary of Upper Mongogarie road reserve; then generally westerly along that road reserve to the eastern most corner of Lot 1 on DP113913; then generally westerly along the northern boundaries of that lot, and again Upper Mongogarie road reserve to Longitude 152.835913° East; then generally southerly through the following coordinate points; Then westerly to the northern boundary of Wyan Alice road reserve (Busbys Flat Road) at 152.792026° East; then generally westerly, generally north westerly and generally south westerly along the northern and western boundaries of that road reserve to the northern boundary of Lot 36 on DP755604; then easterly along the northern boundary of that lot to the western bank of Lollback Creek; then generally southerly along the western bank of that creek to the northern bank of Busbys Creek; then generally westerly along the northern bank of that creek to the prolongation northerly of the western boundary of the northern severance of Lot 13 on DP755636; then south westerly to and along the western boundary of that lot to the north western corner of the southern severance of that lot (being the southern boundary of an unnamed road reserve); then south easterly along the southern boundary of that unnamed road reserve to the southern boundary of Busbys School road reserve (Old School Road); then generally south easterly along the southern boundaries of that road reserve to the north eastern corner of the south western severance of Lot 65 on DP755636; then generally southerly and generally south easterly through the following coordinate points; Then easterly to a point on the western bank of Myrtle Creek at Latitude 29.123443° South; then generally southerly along the western bank of that creek to the western boundary of Hicks Road reserve; then generally south easterly along that road reserve to the western boundary of Seery road reserve (Wyan Creek Road); then generally southerly along the western boundary of that road reserve to the prolongation north westerly of the western boundary of an unnamed road reserve at Latitude 29.143415° South; then generally south easterly to and along the western and southern boundaries of that road reserve to a point on the eastern bank of Four Mile Creek; then generally north easterly along the eastern and southern banks of that creek to Longitude 152.801515° East; then generally south easterly through the following coordinate points; Then south easterly to a point on the southern bank of Cabbage Tree Creek at Longitude 152.814088° East; then generally easterly along the southern banks of that creek to the western bank of Fullers Arm; then generally southerly along the western bank of Fullers Arm to Latitude 29.191710° South; then generally south easterly through the following coordinate points; Then southerly to a point on the southern boundary of Lot 31 on DP755608 at Longitude 152.847533° East; then easterly along the southern boundary of that lot to the eastern boundary of an unnamed road reserve at Longitude 152.848519° East; then generally southerly along the eastern boundaries of that road reserve to Latitude 29.240187° South; then generally southerly through the following coordinate points; Then south easterly to a point on the southern bank of Sportsman Creek at Longitude 152.863356° East; then generally easterly and generally south easterly along the southern and western banks of that creek to Latitude 29.432304° South; then south easterly to the northern most corner of Lot 69 on DP725852; then generally south easterly along the northern and eastern boundaries of that lot to the southern boundary of Khan Road reserve; then generally south easterly and generally southerly along the southern and western boundaries of that road reserve and the Summerland Highway road reserve to its intersection with the northern boundary of Clarence Way road reserve; then generally north westerly along the northern boundary of that road reserve to its intersection with the prolongation northerly of the western boundary of the Moleville Rocks road reserve; then southerly to and along the western boundary of that road reserve to Latitude 29.573425° South; then generally south westerly through the following coordinate points; Then southerly to the centreline of the Clarence River at Longitude 152.901251° East; then generally south westerly and generally north westerly along the centreline of that river and the centreline of the Mann River to Longitude 152.503555° East; then south westerly to a point on the northern boundary of the Gwydir Highway road reserve at Latitude 29.432783° South; then generally south westerly along the boundary of that road reserve to Latitude 29.488386° South; then generally north westerly, generally south westerly and again generally north westerly through the following coordinate points; Then north westerly to the southernmost corner of an unnamed road which bisects the southern boundary of Lot 1 on DP751494; then generally northerly along the eastern boundaries of that unnamed road to Latitude 29.394977° South; then generally northerly through the following coordinate points; Then northerly to an eastern boundary of the Upper Rocky River road reserve at Latitude 29.334920° South; then generally northerly along the eastern boundaries of that road reserve to Latitude 29.209676° South; then generally northerly through the following coordinate points; Then northerly to again an eastern boundary of Upper Rocky River road reserve at Latitude 29.200911° South; then generally northerly along the eastern boundaries of that road reserve to its intersection with the southern boundary of Billarimba road reserve; then northerly to the northern boundary of that road reserve at Longitude 152.249268° East; then generally north westerly along the northern and eastern boundaries of that road reserve to Longitude 152.141355° East; then generally north easterly through the following coordinate points; Then north westerly to the eastern boundary of an unnamed road reserve which bisects Lot 108 on DP751507 at Latitude 29.050334° South; then generally north westerly along the eastern boundaries of that road reserve to its intersection with the southern boundary of Timbarra road reserve; then northerly to the northern boundary of that road reserve at Latitude 29.032323° South; then generally westerly along the boundaries of that road reserve to its intersection with the northern boundary of an unnamed road at Longitude 152.126404° East; then westerly along the northern boundary of that road reserve to the western most point of Lot 159 on DP751491; then south westerly to the north western corner of Lot 144 on DP751491; then generally westerly along the northern boundary of the Bruxner Highway road reserve to the northern boundary of an unnamed road reserve at Longitude 152.103592° East; then westerly and northerly along the northern and eastern boundaries of that road reserve and onwards to the northern boundary of another unnamed road reserve at Latitude 29.030627° South; then westerly along the northern boundary of that road reserve to the eastern boundary of another unnamed road reserve at Latitude 29.029897° South; then northerly along the eastern boundaries of that unnamed road and onwards to the northern boundary of another unnamed road at Latitude 29.025433° South; then westerly along the northern boundary of that unnamed road reserve to the eastern boundary of Bryans Gap Road reserve; then generally northerly and generally westerly along the eastern and northern boundaries of that road reserve to the eastern boundary of the Mount Lindsay Highway road reserve; then generally northerly along the eastern boundaries of that road reserve to Latitude 28.991149° South; then generally northerly, generally westerly and again generally northerly through the following coordinate points; Then westerly to a point on the New South Wales / Queensland State border at Latitude 28.903521° South; then generally northerly along that state border to Latitude 28.695408° South; then generally north easterly through the following coordinate points; Then north easterly to a western boundary of Lot 51 on DP751056 at Latitude 28.694635° South; then generally easterly along the northern boundaries of that lot to the north western most corner of Lot 83 on DP751056; then generally north easterly and generally south easterly along northern and eastern boundaries of that lot to the southernmost point of Lot 462 on DP751078; then generally northerly and generally easterly along eastern and southern boundaries of that lot to a western boundary of the Mount Lindsay Highway road reserve; then easterly to a point on the eastern boundary of that road reserve at Latitude 28.694625° South, being a point on the western boundary of Lot 439 on DP751083; then southerly and easterly along western and southern boundaries of that lot to the north eastern corner Lot 7300 on DP1127359; then southerly along the eastern boundary of that lot to the south western corner of Lot 64 on DP751043; then easterly and northerly along the southern and eastern boundaries of that lot to the north western corner of Lot 122 on DP751056; then easterly along the northern boundary of that lot and the prolongation of that boundary to its intersection with the eastern bank of Bookookoorar Creek, being a point on the western boundary of Lot 67 on DP751056; then northerly and easterly along the western and northern boundaries of that lot to a western boundary of Lot 11 on DP751056; then generally northerly, generally easterly, generally south easterly and north easterly along the western and northern boundaries of that lot until its intersection with the southern bank of Bookookoorar Creek; then north easterly to the centreline of that creek at Longitude 152.187362° East; then generally easterly along the centreline of that creek and onwards to the centreline of Boonoo Boonoo River; then generally north easterly and generally south easterly along the centreline of that river , the Maryland River, and the Clarence River to its intersection with the westerly prolongation of the northern boundary of Lot 80 on DP752397; then generally easterly and generally northerly to and along the northern and western boundaries of that lot, Lot 23 on DP752397 and Lot 219 on DP40311 to its the northernmost point; then north easterly to the western bank of Tunglebung Creek at Latitude 28.853060° South; then north easterly to the centreline of that creek at Latitude 28.852655° South; then generally north easterly along the centreline of that creek to Longitude 152.626066° East; then northerly to the south western corner of Lot 12 on DP12585; then northerly and easterly along the western and northern boundaries of that lot to its intersection with the western bank of Tunglebung Creek at Latitude 28.838509° South; then north easterly to the centreline of that creek at Longitude 152.631592° East; then generally north easterly along the centreline of that creek to Longitude 152.638358° East; then north easterly to the western most point of Lot 181 on DP803040; then northerly and easterly along the western and northern boundaries of that lot and Lot 182 on DP803040 to its north eastern most corner; then easterly to the south western corner of Lot 183 on DP803040; then easterly along the southern boundary of that lot to the western bank of Tunglebung Creek; then easterly to the centreline of that creek at Longitude 152.650364° East; then generally easterly along the centreline of that creek to Longitude 152.660163° East; then northerly to the south western most corner of Lot 20 on DP12585; then northerly, easterly and southerly along the western, northern and eastern boundaries of that lot to the northern bank of again Tunglebung Creek and onwards to the centreline of that creek; then generally easterly along the centreline of that creek to Longitude 152.674322° East; then northerly to the southernmost corner of Lot 19 on DP752365; then generally northerly along the western boundaries of that lot, Lot 2 on DP865896, Lot 1 on DP865896, Lot 29 on DP752365, Lot 30 on DP752365 to the south eastern most corner of Lot 33 on DP752365; then westerly along the southern boundary of that lot and onwards to the south eastern most corner of Lot 62 on DP751074, being the western boundary of an unnamed road; then generally northerly along the western boundaries of that unnamed road to Latitude 28.768908° South; then easterly to the south western most corner of Lot 54 on DP751074; then easterly, generally northerly and generally easterly along the southern boundaries of that lot to the western boundary of Lot 1 on DP399751; then southerly and easterly along the western and southern boundaries of that lot and the southern boundary of Lot 1 on DP136501 to the western boundary of Lot 39 on DP752365; then generally northerly and generally easterly along the western and northern boundaries of that lot to its north eastern most corner, also being a point on the southern boundary of native title determination NSD6019/98 The Githabul Peoples as determined on 29th November 2007; then generally easterly along the southern boundary of that determination to the western most point of Lot 8 on DP816708; then southerly along the western boundary of that lot and 208 on DP755704 to its south western most corner, also being a point on a boundary of native title determination NSD6019/98 The Githabul Peoples (NC95/11) as determined on 29th November 2007; then generally southerly along that native title determination boundary to the western boundary of Lot 196 on DP755704; then southerly along the western boundary of that lot to its south western most corner; then southerly to the northern boundary of Lot 73 on DP755723 at Longitude 152.749286° East; then generally easterly along the northern boundaries of that lot, the western and northern boundaries of Lot 1 on DP185025 and onwards to the north western corner of Lot 84 on DP755723; then easterly along the northern boundary of that lot to the south western most corner of Lot 91 on DP755723; then northerly and easterly along the western and northern boundaries of that lot to the south western most corner of Lot 26 on DP755723; then northerly and generally easterly along the western and northern boundaries of that lot to its eastern most point, being a point on a southern boundary of an unnamed road reserve; then south easterly along the southern boundary of that road reserve to the western bank of Shannon Brook; then easterly to the centreline of that brook at 152.793157° East; then generally north easterly along the centreline of Shannon Brook to Longitude 152.839450° East; then southerly to the northern most corner of Lot 45 on DP755723; then generally southerly along the eastern boundary of that lot to the southern boundary of Bulmers Road reserve; then generally north easterly along the southern boundaries of that road reserve and the Bruxner Highway road reserve to the centreline of Shannon Brook; then generally easterly and generally south easterly along the centreline of Shannon Brook back to the commencement point.
SCHEDULE FOUR - PART B AREA No determination is made at present in relation to the land or waters described in the table below: Aboriginal Land Claim Land Subject of Claim ALC 24224 (a) Lot 15/8/758015 (ID 9); (b) Lot 13/8/758015 (ID 10); (c) Lot 14/8/758015 (ID 11); (d) Lot 16/8/758015 (ID 12); (e) Lot 17/8/758015 (ID 13); (f) Lot 9/8/758015 (ID 14); (g) Lot 12/8/758015 (ID 15); and (h) Lot 11/8/758015 (ID 16). ALC 24226 (a) Lot 9/9/758015 (ID 35); (b) Lot 2/9/758015 (ID 36); (c) Lot 8/9/758015 (ID 37); (d) Lot 7/9/758015 (ID 38); (e) Lot 6/9/758015 (ID 39) (f) Lot 5/9/758015 (ID 40); (g) Lot 3/9/758015 (ID 41); and (h) Lot 4/9/758015 (ID 42). ALC 24227 (a) Lot 10/13/758015 (ID 5); (b) Lot 1/13/758015 (ID 6); (c) Lot 20/13/758015 (ID 7); (d) Lot 11/13/758015 (ID 17); (e) Lot 2/13/758015 (ID 18); (f) Lot 3/13/758015 (ID 19); (g) Lot 4/13/758015 (ID 20); (h) Lot 5/13/758015 (ID 21); (i) Lot 6/13/758015 (ID 22); (j) Lot 7/13/758015 (ID 23); (k) Lot 8/13/758015 (ID 24); (l) Lot 9/13/758015 (ID 25); (m) Lot 19/13/758015 (ID 26); (n) Lot 18/13/758015 (ID 27); (o) Lot 17/13/758015 (ID 28); (p) Lot 16/13/758015 (ID 29); (q) Lot 15/13/758015 (ID 30); (r) Lot 14/13/758015 (ID 31); (s) Lot 13/13/758015 (ID 32); and (t) Lot 12/13/758015 (ID 33). ALC 24228 (a) Lot 1/12/758015 (ID 8); (b) Lot 10/12/758015 (ID 34); (c) Lot 2/12/758015 (ID 43); (d) Lot 3/12/758015 (ID 44); (e) Lot 4/12/758015 (ID 45); (f) Lot 5/12/758015 (ID 46); (g) Lot 6/12/758015 (ID 47); (h) Lot 7/12/758015 (ID 48); (i) Lot 8/12/758015 (ID 49); and (j) Lot 9/12/758015 (ID 50). Grafton Ngerrie Local Aboriginal Land Council Interests Lot/ DP (ID Area) Land Subject to interest (a) Lot 115 DP48510 (ID2572) (b) Lot 406 DP 46680 (ID2849) (c) Lot 402 DP 44776 (ID3202) (d) Lot 407 DP 48710 (ID3502) (e) Lot 197 DP48433 (ID3865) (f) Lot 409 DP 48826 (ID2965 (g) Lot 196 DP48499 (ID3984) (h) Lot 7002 DP 92946 (ID 235) (i) Lot 347 DP 751366 (ID 236) (j) Lot 701 DP 92899 (ID 260) (k) Lot 3 Sec 23 DP 758290 (ID 261) (l) Lot 4 Sec 23 DP 758290 (ID 262) (m) Lot 390 DP 751366 (ID 298) (n) Lot 124 DP 751369 (ID 351)
SCHEDULE FIVE - AGREEMENTS
SCHEDULE SIX - OTHER INTERESTS IN THE NATIVE TITLE AREA The Other Interests in the Native Title Area, as they exist at the date of this Determination, are as follows:
Aboriginal Land Council interests (a) The rights and interests of New South Wales Aboriginal Land Council; Baryulgil Local Aboriginal Land Council; Casino Boolangle Local Aboriginal Land Council; Jana Ngalee Local Aboriginal Land Council; Moombahlene Local Aboriginal Land Council; and Jubullum Local Aboriginal Land Council (the 'Aboriginal Land Council respondents') and other Aboriginal Land Councils pursuant to undetermined Aboriginal land claims made under section 36 of the Aboriginal Land Rights Act 1983 (NSW) in respect of certain lands within the Native Title Area, including the right to have each such claim determined according to law and, subject only to a determination that the land is claimable Crown land as defined in section 36(1) of that Act, the right to the transfer of an estate in fee simple pursuant to that Act. (b) The rights and interests of the Aboriginal Land Council respondents listed in the table below as the holder of a freehold title including the rights of these Aboriginal Land Councils to use, manage, control, hold or dispose of, or otherwise deal with, land vested in it in accordance with the Aboriginal Land Rights Act 1983 (NSW) over the areas of land or waters in the Native Title Area: Local Aboriginal Land Council Areas over which freehold title held Baryulgil Local Aboriginal Land Council (a) Lot 77 DP 752367 (ID2081) (b) Lot 76 DP 752367 (ID2082) (c) Lot 51 DP 752367 (ID2066) (d) Lot 70 DP 752367 (ID2067) (e) Lot 7 DP 752367 (ID2071) (f) Lot 98 DP 752367 (ID2072) (g) Lot 9 DP 752367 (ID2073) (h) Lot 95 DP 752367 (ID2074) (i) Lot 69 DP 752367 (ID2075) (j) Lot 48 DP 752367 (ID2076) (k) Lot 50 DP 752367 (ID2090) (l) Lot 45 DP 1008676 (ID2091) (m) Lot 13 DP 752367 (ID2096) (n) Lot 27 DP 752367 (ID2109) (o) Lot 3 DP 752367 (ID2112) (p) Lot 4 DP 752367 (ID2120) (q) Lot 46 DP 752367 (ID2126) (r) Lot 47 DP 752367 (ID2127) (s) Lot 49 DP 752367 (ID2128) (t) Lot 5 DP 752367 (ID2129) (u) Lot 6 DP 752367 (ID2132) (v) Lot 64 DP 752367 (ID2137) (w) Lot 67 DP 752367 (ID2140) (x) Lot 68 DP 752367 (ID2141) (y) Lot 75 DP 752367 (ID2146) (z) Lot 78 DP 752367 (ID2147) (aa) Lot 8 DP 752367 (ID2148) (bb) Lot 81 DP 752367 (ID2150) (cc) Lot 82 DP 752367 (ID2157) (dd) Lot 86 DP 752367 (ID2154) (ee) Lot 87 DP 752367 (ID2155) (ff) Lot 56 DP 1008675 (ID2163) (gg) Lot 105 DP1003891 (ID5498) (hh) Lot 103 DP 48534 (ID5519) (ii) Lot 5 DP 856073 (ID7282) (jj) Lot 2 DP 856073 (ID7283) (kk) Lot 131 DP752401 (ID7292) Jana Ngalee Local Aboriginal Land Council (a) Lot 55 DP752376 (ID4219) (b) Lot 80 DP 48497 (ID4220) (c) (Part of) Lot 3 DP 615564 (ID5311) Casino Boolangle Local Aboriginal Land Council (a) (Part of) Lot 70 DP 755604 (ID2050) (b) Lot 71 DP 46682 (ID2053) (c) Lot 102 DP 47650 (ID7118) Moombahlene Local Aboriginal Land Council (a) Lot 36 DP751045 (ID1987) Jubullum Local Aboriginal Land Council (a) Lot 55 DP14212 (ID2393) (b) Lot 53 DP14212 (ID6523) (c) Lot 224 DP752398 (ID6767)
And (c) The rights of each of the Aboriginal Land Council Respondents in relation to land that is granted subject to native title pursuant to section 36(9) of the Aboriginal Land Rights Act 1983 (NSW).
Aboriginal Corporation Land (a) The rights and interests of the Aboriginal Corporation listed in the table below as the holder of a freehold title including the rights of these Aboriginal Corporations to use, manage, control, hold or dispose of, the areas of land or waters in the Native Title Area: Aboriginal Corporation Land Areas over which freehold title held Tabulam Aboriginal Corporation (a) Lot 34 DP752378 (ID4623) (b) Lot 35 DP752378 (ID4590) (c) Lot 86 DP753378 (ID4630) Mall-Bunoogah Aboriginal Corporation (a) Lot 4 DP368358 (ID5892) Jubal Aboriginal Corporation (a) Lot 223 DP43811 (ID6390) (b) Lot 118 DP752397 (ID6396) (c) Lot125 DP831605 (ID6408) (d) Lot 220 DP43810 (ID6419) Gungyah Ngalingnee Aboriginal Corporation (a) Lot13/22 DP758944 (ID6312) (b) Lot 21 DP1003453 (ID6700) (c) Lot 1 DP749875 (ID6727)
Reserves (a) The rights of State, Local Government and other organisations or persons who have the care, control and management of any reserves within the Native Title Area subject to the laws of the State of New South Wales and of the Commonwealth; and (b) the rights of persons entitled to access and use reserves within the Native Title Area for the purposes for which they are reserved, subject to any statutory limitations upon those rights.
Mining and Petroleum Interests (a) The rights of the holders of any mining interests. (b) The rights of holders of any petroleum interests.
Water Interests (a) The rights of any holder as at the date of this determination of any licences or permissive occupancies granted under the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW).
Fishing Interests (a) The rights of the holders from time to time of leases, licences and permits granted or issued under the Fisheries Management Act 1994 (NSW) and Regulations made under that Act. (b) Other rights and interests under the care, management and control of the Department of Primary Industry - Fisheries subject to the laws of the State of New South Wales and of the Commonwealth. (c) The rights of the Department of Primary Industry - Fisheries, and employees or agents of the same under the Fisheries Management Act 1994 (NSW) and Regulations made under that Act.
National Park Interests (a) The rights of the holders from time to time of leases, licences and permits granted or issued under the National Parks and Wildlife Act 1974 (NSW) and Regulations made under that Act. (b) The rights of the NSW Office of Environment and Heritage, and employees or agents of the same under the National Parks and Wildlife Act 1974 (NSW) and Regulations made under that Act. (c) The rights of the NSW Office of Environment and Heritage, and employees or agents of the same, who have the care, control and management of any reserves, subject to the laws of the State of New South Wales and of the Commonwealth.
Occupational Permits The rights and interests of any holder as at the date of this determination of any forest permit under the Forestry Act 2012 (NSW) which continues in force under the National Parks and Wildlife Act 1974 (NSW).
Forestry Interests (a) The rights of the holders from time to time of leases, licences and permits granted or issued under the Forestry Act 2012 (NSW) and Regulations made under that Act. (b) Other rights and interests under the care, management and control of the Forestry Corporation of New South Wales (as constituted under the Forestry Act 2012 (NSW)) subject to the laws of the State of New South Wales and of the Commonwealth. (c) The rights of the Forestry Corporation of New South Wales, and employees or agents of the same under the Forestry Act 2012 (NSW) and Regulations made under that Act.
Crown Lands Interests (a) The rights of the holders from time to time of leases, licences and permits granted or issued under the Crown Lands Act 1989 (NSW) and Regulations made under that Act. (b) Other rights and interests under the care, management and control of the New South Wales Department of Industry - Lands subject to the laws of the State of New South Wales and of the Commonwealth. (c) The rights of the New South Wales Department of Industry - Lands, and employees or agents of the same under the Crown Lands Act 1989 (NSW) and Regulations made under that Act.
Telstra Corporation Limited (a) The rights and interests of Telstra Corporation Limited (ACN 051 775 556): (i) as the owner or operator of telecommunications facilities within the Native Title Area; (ii) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: (A) to inspect land; (B) to install and operate telecommunications facilities; and (C) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (b) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Native Title Area in the performance of their duties; and (c) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Native Title Area.
Electricity and Energy Supply Interests (a) The rights and interests of an electricity or energy supply authority within the meaning of the Electricity (Consumer Safety) Act 2004 (NSW) and the Energy Services Corporations Act 1995 (NSW) to exercise functions, powers or rights in accordance with the laws of the State of New South Wales or of the Commonwealth and as either or both owner and operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure situated on the Native Title Area including but not limited to the right to enter the Native Title Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with existing facilities and infrastructure. (b) The rights and interests of: (i) a network operator within the meaning of the Electricity Supply Act 1995 (NSW); or (ii) for the purposes of any privatisation transaction, any lessor or lessee of a transmission system or person who owns or is authorised to control or operate a transmission system, to exercise functions, powers or rights in accordance with the laws of the State of New South Wales or of the Commonwealth as operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure situated on the Native Title Area including but not limited to the right to enter the Native Title Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with existing facilities and infrastructure.
Local Government Interests The rights and interests of Clarence Valley Council and Tenterfield Shire Council as councils constituted under the Local Government Act 1993 (NSW).
Licence Interest Rights and interests under licence number LI 355173 granted by the Crown in right of the State of New South Wales pursuant to the Crown Lands Act 1989 (NSW).
Other interests generally (a) Rights and interests, including licences and permits, granted by the Crown in right of the State of New South Wales or of the Commonwealth pursuant to statute or under regulations made pursuant to such legislation. (b) Rights and interests held by reason of the force and operation of the laws of the State of New South Wales or of the Commonwealth. (c) Rights and interests of members of the public arising under common law or statute. (d) So far as is confirmed pursuant to section 18 of the Native Title (New South Wales) Act 1994 (NSW) as at the date of the Determination, any existing public access to and enjoyment of: (i) waterways; (ii) the bed and banks or foreshores of waterways; (iii) travelling stock reserves; and (iv) areas that were public places at the end of 31 December 1993. (e) The rights of: (i) an employee, agent or instrumentality of the State of New South Wales; (ii) an employee, agent or instrumentality of the Commonwealth; (iii) an employee, agent or instrumentality of any Local Government Authority, to access the Native Title Area and carry out actions as required in the performance of his/ her or its statutory or common law duty.
JAGOT J: 1 First and foremost today is a day of celebration for the Western Bundjalung People. Today, by force of the making of orders of this Court, the law of Australia formally recognises what has always been the case under the traditional laws and customs of the Western Bundjalung People, that the land they claimed in this Northern Rivers area of New South Wales is the land of the Western Bundjalung People, that the Western Bundjalung People have rights and interests in that land possessed under their traditional laws and customs, and by which they have a connection to this land. 2 Nothing which follows should detract from the significance of this event. But some things need to be said. Some need to be said because I am bound to give reasons which explain why I consider that I should make orders in accordance with an agreement reached between the parties. Others need to be said because in matters under the Native Title Act 1993 (Cth) (the NTA), certain provisions of the Federal Court of Australia Act 1976 (Cth) (the Court Act) take on particular significance. 3 Section 37M(1) of the Court Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Section 37M(2) provides that the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 4 Section 37M(3) imposes a duty in these terms: The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. 5 I am bound by s 37M(3). 6 All parties are subject to a similar duty as the duty that binds me. By s 37N(1) of the Court Act "[t]he parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose". By s 37N(2), a party's lawyer, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party's behalf, must take account of the duty imposed on the party by s 37N(1) and assist the party to comply with the duty. 7 These provisions are not present in the Court Act for the purpose of mere ritual incantation. They, and equivalent provisions in other statutes relating to other courts, are fundamental to the functions of our judicial system. A judicial system which provides justice according to law in a manner which is efficient, timely and at a cost which is proportionate to the importance and complexity of the matters in dispute is essential to the compact between citizens and the government of a democracy subject to the rule of law. If the judicial system is incapable of fulfilling these basic requirements, the rule of law, and thus the essential compact between the government and its citizens, is weakened. 8 In the area regulated by the NTA, protection of the compact between the State and its citizens and thus the rule of law by ensuring justice according to law in a manner which is efficient, timely and at a cost which is proportionate to the importance and complexity of the matters in dispute, requires particular vigilance for at least four reasons. 9 First, just as courts are a public resource, the principal parties to any matter arising under the NTA are usually a publicly funded native title claimant group and the State itself, either directly or, depending on the administrative arrangements within the State, as represented by a Minister of the Crown. In such cases, the entire process from the meeting to authorise the making of the claim to the final orders is funded by the public. This is so in the present case. The claimant group, the Western Bundjalung People, is represented by NTSCORP Limited which is a representative body for the State of New South Wales recognised under s 203AD of the NTA, required to perform statutory functions under ss 203B to 203BK, funded for that purpose by the Commonwealth under Div 4 of Pt 11 of the NTA. The principal respondent is the Attorney General of New South Wales, a Minister of the Crown in right of the State of New South Wales. 10 Second, the principal respondent, the Attorney General, and all of those departments, agencies and offices of the State of New South Wales who are involved in the process of resolving native title claims are subject to the Model Litigant Policy for Civil Litigation which provides that the State and its agencies must act as model litigant in the conduct of litigation which requires more than merely acting honestly and in accordance with the law and court rules. It also requires more than a lawyer acting in accordance with a lawyer's ethical obligations. It requires, as is said in clause 3.1 of the policy, the State and its agencies to act with complete propriety, fairly, and in accordance with the highest professional standards. Clause 3.2 of the policy requires the State and its agencies to deal with claims promptly and not cause unnecessary delay and to endeavour to avoid litigation wherever possible. Clause 3.2 also provides that particular regard must be had to the overriding purpose in civil litigation to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and calls for the costs of litigation to be kept to a minimum, where litigation is unavoidable. 11 Third, the duties to which we are all subject and the Model Litigant Policy to which the State is subject are operating here in the context of the NTA, a statute which expressly provides in its Preamble that it was enacted in circumstances where: The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands. As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society. … The High Court has: (a) rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement; and (b) held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands; and (c) held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates. The people of Australia intend: (a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. … It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done. A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to: (a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and (b) proposals for the use of such land for economic purposes. 12 Apart from this, and the express reference in the Preamble to the need for the just and proper ascertainment of native title rights and interests to be achieved if possible by conciliation, the substantive provisions of the NTA also disclose the clear intention of Parliament that issues arising under the NTA are to be resolved by negotiation and agreement, rather than contested litigation. Accordingly, the NTA contains provisions in respect of native title claimant applications which include: (1) A requirement that matters be referred to and continue in mediation unless the Court considers that mediation will be unnecessary because of an agreement between the parties or for any other reason, or there is no likelihood of the parties being able to reach agreement, or the applicant has provided insufficient information about the matter to enable mediation (ss 86A, 86B, and 86C). (2) The powers of a mediator under Div 4 of Pt 4 of the NTA including requiring attendance (s 94E) and production of documents (s 94G), as well as the obligation imposed on parties attending a mediation to "act in good faith in relation to the conduct of the mediation", an obligation which is reinforced by a mediator's power to report to the responsible Minister or Department Secretary or to the Court any failure by a party to act in good faith (s 94P). (3) The capacity for the Court to determine any question of fact or law referred by a mediator (s 86D). (4) The capacity for the Court to require a progress report from a mediator (s 86E). (5) The capacity for the parties to request the assistance of the National Native Tile Tribunal in negotiating an agreement, and the fact that an agreement resolving a native title claim may include matters other than native title (s 86F(1) and (2)). (6) The capacity for the Court to adjourn proceedings to allow for negotiation (s 86F(3)). (7) The capacity for the Court to make orders without a hearing if an application is unopposed (s 86G). (8) The Court's power to make an order in or consistent with the terms of an agreement reached between the parties about the whole or part of any area, including giving effect to an agreement about matters other than native title (ss 87 and 87A). (9) The capacity of the Court to hold conferences "to help in resolving any matter that is relevant to the proceedings" presided over by an assessor appointed to assist the Court (s 88). 13 All of these provisions disclose a statutory scheme by which the Commonwealth Parliament intends native title claims to be resolved by outcomes agreed between parties as a result of a process of negotiation in good faith if at all possible. These processes and their outcomes are a critical part of the statutory scheme by which the Commonwealth Parliament has recognised that previous exercises of Crown power based on the doctrine of terra nullius, which had no application to this continent, unjustly dispossessed Aboriginal people of their lands resulting in generational disadvantage which has not yet been rectified. The Preamble to the NTA expressly states that the Act is intended to achieve rectification of past injustice and current disadvantage so as "to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire". 14 Some of the concepts which appear in the Preamble to the NTA deserve further consideration. The Preamble refers to the rich and diverse culture of Aboriginal peoples and Torres Strait Islanders. It refers to Aboriginal peoples and Torres Strait Islanders being the inhabitants of Australia before European settlement. It refers to Aboriginal peoples and Torres Strait Islanders being progressively dispossessed of their lands. 15 As many judgments dealing with native title claimant applications disclose, it is wrong to assume that European settlement was effected in 1788. Many parts of Australia were not subject to European settlement until much later from the mid-1800s onwards. According to Dr Bennett, NTSCORP's Senior Research Historian, first contact between the Aboriginal peoples of the claim area and Europeans occurred in the 1830s, with pastoral occupation beginning in 1839 at Copmanhurst and thereafter spreading along the Clarence River flats towards Tabulam and then along the Rocky River. Conflicts followed in the 1840s with at least 17 Aboriginal people killed at Pagans Flat in a revenge attack, a place remembered for this horrific event by the Western Bundjalung people of the present day, and which should be remembered by us all. In 100 or so years or less many Aboriginal peoples around the country had been displaced from their lands, causing devastating impacts to the rich and diverse cultures of those peoples, and the generational disadvantage which the NTA is intended to redress. According to Dr Bennett several thousand Western Bundjalung People, however, endured and continued to live along the Clarence River practising their traditional laws and customs, with many of the apical ancestors of the claim group being born in the 1850s in this area. 16 Most of us probably heard recently of the discoveries in Kakadu National Park which demonstrate the presence of Aboriginal people in Australia for at least 65,000 years, about 25,000 years more than previously believed based on other archaeological evidence. All of these matters lie behind the NTA, by which the Commonwealth Parliament has expressly recognised the unique position of Australia's first people, a people whose culture developed uninterrupted across Australia for millennia, who were effectively dispossessed of their lands in a mere century, and who continue to experience profound disadvantage as a result nearly a century further on. 17 Against this background, the duty to which we are all subject, to ensure that issues arising under the NTA are resolved according to law and in a manner which is efficient, timely and at a cost which is proportionate to the importance and complexity of the matters in dispute, is of the utmost importance. The discharge of its duty by the State party is particularly critical. It is the State party which is the landed successor to the dispossession of Aboriginal peoples. It is the State party with whom the principal negotiations about native title claims must take place. It is within the power of the State party to agree to resolve a claim by an applicant without the need for contested litigation and in a manner which is timely, efficient and does not involve disproportionate resources. It is the State party which is subject not only to the duties imposed by the NTA and the Court Act but also by the obligations of a model litigant. Unless the State party is both vigilant about discharging all of its duties in good faith, recognising the objects of the NTA and its unique role, and committed to taking responsibility for driving sensible and fair outcomes in a timely manner, there is no real prospect of other parties or the Court being able to effectively discharge their and its duties. There is also no prospect of matters being resolved in a manner which is consistent with the objects of the NTA. 18 Before recounting the events which led to the agreement embodying recognition of the native title rights and interests of the Western Bundjalung People, I should note other aspects of the unique position of a State party as the principal respondent to a native title claim. By s 223 of the NTA "native title rights and interests" means 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 the 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 recognised by the common law of Australia. 19 Before making an order in or consistent with the terms of an agreement reached under ss 87 or 87A, amongst other things, it must appear to be appropriate to the Court to make such an order. It is apparent from the authorities that there is no requirement that an applicant prove on the balance of probabilities each of the matters in s 223 of the NTA before it may be appropriate for the Court to make an order in or consistent with the terms of an agreement. Necessarily, it follows that there is no requirement that an applicant prove to the State on the balance of probabilities each of the matters in s 223 of the NTA before an agreement is reached between them recognising native title rights and interests. Gilmour J said this expressly in Watson v Western Australia (No 6) [2014] FCA 545 at [29]: …in the context of a consent determination, a party is not required to prove, or have proved to them, matters of fact as if the proceeding were contested. 20 It is also apparent from the authorities that the Court recognises that the State party is effectively the guardian of all of the interests of its people in a native title claim. It should go without saying that the people to whom the State owes a duty include the Aboriginal people who are the claimants. Thus it would be wrong for the State to conceive of its role as merely a gatekeeper through which cogent claims may ultimately be permitted to pass if the claim is one that comes to be supported by so much material that, in all probability, the claim would succeed before the Court if litigated; in particular, ensuring prima facie cogent claims are resolved by agreement in a timely and fair manner, at a reasonable and proportionate cost to claimant groups, is an important part of the public interest the State is intended to protect and promote. 21 In reconciling its multiple duties the orthodox position which has emerged and been settled for many years is that the State should not require an applicant to prove to it on the balance of probabilities that each of the requirements of s 223 is satisfied. For the State party to discharge its duties not only to the public at large but also to the claim group and to the Court, and to fulfil its fundamental obligations of fidelity to the objects of the NTA and the requirements of the Court Act, it looks for only a credible or cogent basis to conclude that the requirements of s 223 are satisfied whether or not that basis would constitute admissible evidence in contested litigation or would enable the Court to make findings about s 223 in favour of an applicant on the balance of probabilities. As North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474: 36 The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act 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. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. 38 The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. These comments relate to the requirements of s 87, and are not intended to reflect on the conduct of the State in this case. 22 For a State respondent to apply a more onerous standard for the purpose of negotiations with a view to reaching an agreement under s 87 would involve an impermissible departure from the standards of fidelity to the provisions of the NTA, the Court Act and the obligations of such bodies to act as a model litigant. The disparity between the positions of an applicant and the State, and the resources available to them, is stark. It is an applicant that seeks an agreement. The applicant, in effect, is the supplicant and the State the holder of the power to agree or not agree. The applicant's resources are generally confined to the public funding of the relevant representative body from year to year at the discretion of the Commonwealth. Whatever submissions have been made to me over time in various matters about the actual resources available to the individuals who conduct these matters on behalf of the State of New South Wales (be it within the relevant departments or the Crown Solicitor's Office), that is a result of choices the State of New South Wales has made about how to arrange and deploy its resources. Compared to the resources available to an applicant, the State's resources are vast. This disparity of power and resources, in the context of the provisions of the NTA and the obligations imposed on parties by the Court Act, mean that the State must be acutely sensitive to the requirements of good faith, reasonableness and the avoidance of conduct which may have an oppressive impact on an applicant. As I have said, it also calls for the State to be ready and able to take responsibility for driving sensible and fair outcomes in a timely manner because that is what is necessary under the NTA. 23 In a joint submission on behalf of the applicant and the first respondent, this was said: It should not be assumed that the time it has taken to resolve this Application is the result of any unreasonable conduct or dilatoriness on the part of the State, the Applicant or of any other party. If the Court is contemplating making any criticism against any party on such matters, then that party should be given the opportunity [to] present evidence and make such submissions. 24 If any party wishes to call evidence and make further submissions about what follows then they will be given the opportunity to do so. A direction to this effect has been made. If either party takes this opportunity a further hearing, if necessary, will be convened and further reasons given. But this opportunity is no reason to delay the making of the consent determination. The intent of what follows should not be misunderstood. I am aware of the extraordinary effort of individuals that it has taken to reach this point and of the pressure under which those directly involved in this area work, whether it be in NTSCORP, in the Crown Solicitor's Office or in the Department of Industry. I am also aware of and not unsympathetic to the exigencies of litigation resulting in the occasional delay and need for an extension of time for compliance with Court orders, as has occurred and will continue to occur. Nothing that follows should be seen as expressing a concern of that kind; indeed, if the only issues were delays of that kind, nothing would need to be said. But it is not merely delays of that kind which, to my mind, characterise the present case and the resolution of native title claims generally in New South Wales. 25 We should start with the agreement which the parties reached. As with every other such agreement in New South Wales, the agreement placed before the Court recognises non-exclusive native title rights and interests. Further, and approaching this from the distinctly Western perspective of the common law, that agreement does not recognise any native title rights and interests other than those founded upon traditional laws and customs. The native title rights and interests recognised in the agreement are those kinds of rights upon which the rich and diverse culture of Aboriginal peoples was developed over millennia - the right to enter and move across their land, the right to camp on their land, the right to take water for personal use from their land, the right to gather and use traditional natural resources from their land, to hunt, to fish and to light fires for domestic purposes on their land, and to engage in cultural activities on their land including for ceremonies, rituals and gatherings. 26 To the Western Bundjalung People the recognition of these rights today, and the associated recognition that they are the right people for this country, that it is the country of the Western Bundjalung People, is of fundamental significance. Despite everything that has happened, the Western Bundjalung People were here, they are here, and they will be here. Their part of the culture which developed over 65,000 years in Australia has at last been recognised by Australia and the native title rights and interests the subject of the agreement are also recognised and protected into the future. 27 The Western Bundjalung People met on 29 and 30 June 2011 to authorise the making of their claim. Their claim was filed in the Court on 19 December 2011. The application contained 12 affidavits with information relevant to s 223 of the NTA. 28 Linda Walker, known as Auntie Gunda, was born in 1937 in the middle of the claim area at Baryulgil. Her parents were Harry and Lily Mundine. She is descended from four of the apical ancestors of the claim group. She is the youngest of twelve children. She lived her whole life at Baryulgil until she moved to Grafton when she was about 71. She still has a house there and returns whenever she wants. She was taught many things by her elders, about hunting and gathering in the area, the seasons, the animals, fish and vegetation of the area, and proscriptions on hunting certain animals at certain times including porcupine, kangaroo, goanna and carpet snake. She and her family regularly hunted, fished and gathered food and medicines according to this knowledge. She was taught about her totem from her mother's side and its significance. She was taught how to sing out in Bundjalung to animals and at certain places. She was taught what places to avoid, what places were sacred, and what places were for men and for women. She was taught about birthing rituals and rituals related to death. She was taught about proper marriages. She was taught about the creation of the landscape of her people. She was taught the boundaries of the land of her people. She was taught who the Western Bundjalung people were. She was taught her language. She teaches what she knows to her own grandchildren. 29 Lindsay Gordon was born on the Clarence River in the claim area in 1939. He had nine siblings most of whom were also born on the Clarence River. His grandparents are both apical ancestors of the claim group. They moved to Baryulgil when he was five or six. He still returns to Baryulgil for holidays. He was taught hunting by his father and hunted porcupine, goanna, turtles and kangaroo, as well as bush turkey, wild pigeons, parrots and djulawong (like a small magpie). His elders taught him about the land, vegetation and seasons, and bush remedies. He was taught where his father's land was for which his father was responsible, his father having gone through the fifth and final stage of initiation. He was taught what places he could go and not go, places for men and women, and sacred places. He was taught who the Western Bundjalung people were and how they kept to their place and about their neighbours including the Githabul. He was taught who to marry and not. He was taught about ceremonies and spiritual activities which he would not reveal. He was taught his totem which could not be touched when hunting but would say no more. 30 Andrew Donnelly, born in 1953, is descended from Richard Donnelly and, although born in Casino, has lived his whole life in Baryulgil. He was taught everything by grandparents and aunties and uncles. Lots of them spoke the language. He knows quite a bit of the language too and speaks it to his family and other Bundjalung people, as well as to animals and plants. He was sent away for school but always returned to this area. He was taught how to hunt, fish and gather by his father. He was taught about sacred sites, places he could and could not go, burial and massacre sites. He had a totem. You cannot eat your totem. He was taught about his country and his spirit is connected to it and that the Western Bundjalung were baygals. They say ngulingah baygal jogong (this is our ancestral country), ngulinghah (that's ours), nganya (that's mine) and jogong (country), and ngulingah yirabool gulli jogong (this is our country of spiritual enlightenment). He was taught how his country was created and dreaming stories about the Clarence River he would not repeat. He was taught about funeral rituals, his neighbouring tribes, and which families had responsibilities for which sites. 31 Terrence Robinson, born in 1975, is descended from Mick "Bucky" Robinson. His mother is Bundjalung from Baryulgil and his father is Bundjalung from Tabulam. He has lived in these areas. His elders all spoke the language. He has been taught his totem, the wood duck, which his family cannot eat. He was taught hunting, fishing, bush foods, the seasons, and where to go and not go including men's places and women's places to avoid, and about the spirits and sacred areas, as well as ceremonial places. He teaches his children the same things. 32 Kevin Torrens, born in 1952, is also descended from Mick "Bucky" Robinson. He has lived in the area all his life around Baryulgil, Tabulam and now at Jubal. He was taught by his uncles and other elders how to hunt around the area, turtles, kangaroos, porcupines, goannas, and to fish and gather foods, medicines, and ochre for painting. He was taught where he could go and not go, special places, men's places and women's places where he could not go, and massacre sites. He was taught about significant animals and birds and spirits which he would need permission to describe. He was taught about the boundaries of his country. He was taught some language and can still sing in Bundjalung. He teaches his children these things. 33 David Walker grew up in Tabulam mission and is descended from four apical ancestors of the claim group. He was taught about his mob. He was taught what to eat and not to eat, and where his country is, what is ngulinga jaloom (my land). His elders taught him this and who the neighbouring tribes were and their country. He was taught Aboriginal law which is strict and what might happen if you breach it. He was taught where he could and could not go. He was taught dreamtime stories about the creation of his country. He was taught the significant places and taken by his father to men's sites. His father was initiated but he is not. He was taught about the significance of the possum to his family which he could not touch. He was taught his language. He teaches young people as he wants to keep his culture going. 34 Lana Mundine, born in 1947, is Western Bundjalung from her father and a descendant of four apical ancestors. She was taught how to respect her elders, who to marry, what her land is, how to hunt gather and fish, the seasons in which things were done, special and sacred sites, spiritual matters, where she could and could not go, and some of her languages, Bundjalung from her father and Githabul from her mother. 35 Gary Brown, born in 1958, lived around Baryulgil until his family moved to Grafton but he returns to the area whenever he can. His elders taught him how to get bush tucker, where he could and could not go, significant animals, and significant places. 36 William Walker, born in 1960, is part of the Tabulam mob. He was taught by his elders about hunting, the creation of his country and its boundaries, kinship rules, where he could and could not go, his family totem, the totems of other families, the dangerous spirit places, spirit animals, burial grounds, and other sacred places. 37 Bernard Walker, born in 1956, is of the Western Bundjalung people. His family moved around a lot but feels connected to Baryulgil, his first home. He travels back there every year and moved back to his country with his four sons in 1992. He was taught by his elders where he could go and not go, the significant sites in his country, and where the boundaries are, who he could marry and who not. He teaches his sons and young people but there is a lot of knowledge he does not have as the elders have not shared it with him. 38 Muriel Exton, born in 1954, is descended from four of the apical ancestors of the claim group. She was born in Casino but grew up on the Tabulam mission. She was taught hunting, fishing and gathering, the seasons, how elders passed on knowledge and she had to as well in turn but she does not regard herself as an elder yet (or did not when she made her affidavit in 2011). She was told where she could not go, what the rules of her country are, some of her language which her elders all spoke fluently, her totem, sacred sites, dangerous spirits and places, who her mob is, the boundaries of her country, dreamtime stories, and funeral rituals. She passes everything on to her grandkids, nephews and nieces, and to her daughter. 39 Kathy Malera-Badjalan is a descendant of Topsy July, the mother of Matilda Gaton, one of the apical ancestors of the claim group. She feels an unbroken connection to her country and culture. She has been going to her country all her life and was taught where to go and not to go by her grandmother Molly Williams. She was taught about the spirits, her country, how to collect food, significant locations, her mob, her totems, other mobs, correct marriages, how vital it is not to break the law of her people, the need to be buried on country, burial rituals, birthing rituals, women's places and men's places. She teaches these things to her daughters. These things have come down continuously via the matrilineal line to her and her daughters all the way from Topsy July. 40 The Western Bundjalung native title claimant application was notified under s 66 of the NTA between 30 May 2012 and 29 August 2012. Unlike in some other cases, no other Aboriginal group came forward as a result of the notification asserting any competing claim to any part of the land the subject of the claim of the Western Bundjalung people. That is, there was no suggestion by anyone that the Western Bundjalung People were not the right people for this country. Moreover, the claim was never amended. 41 The first case management hearing was on 13 July 2012. Between that date in 2012 and 14 March 2014 the applicant was required by the State to provide further information to establish connection to the country claimed as referred to in s 223 of the NTA. All of these materials were provided on a confidential basis. While the reasons that an applicant may choose to provide further information and do so on a confidential basis rather than risking a hearing on connection are understandable, applicants also are responsible for ensuring that matters can be resolved in a timely manner and at a reasonable cost. In this matter the applicant provided to the State, in addition to the 12 affidavits identified above, a number of anthropological and historical reports and further affidavits on 23 January 2013. I do not know why those documents were required or what further information they provided. I can say only this: (1) at least in a case where there is no overlapping claim by another Aboriginal group, the most credible and cogent basis for establishing connection must be that of Aboriginal people themselves; (2) there may have been some gaps in matters of detail in the 12 affidavits which formed part of the claim document but the State was being asked only if it accepted connection for the purposes of commencing negotiations, not for the purposes of finalising an agreement under ss 87 or 87A of the NTA or a contested hearing; and (3) where it is apparent from the material provided in support of a claim that there is a good chance that connection can be made out to the relevant standard of a credible basis, I do not understand why negotiations cannot commence immediately and proceed in tandem with the resolution of whatever further details might be required. 42 After this, there were confidential case management conferences before the Registrar on 31 May 2013 and 17 June 2013 to work out what more was required. Then the historical experts for the State and the applicant met and conferred on 8 August 2013. The applicant thereafter provided yet more evidence, including a supplementary anthropological report, additional historical source material and an affidavit, as well as a legal submission, on 16 August 2013. The State asked further questions about connection by letter on 27 September 2013. The applicant answered the questions on 20 December 2013. 43 Finally, on 14 March 2014 the State notified the applicant that sufficient evidence had been provided in relation to connection to justify the State commencing negotiations with the applicant with a view to settling the proceedings by a consent determination. This should be repeated - the two year process engaged in after the applicant had provided a dozen affidavits relevant to connection in its claim document at the outset was only for the purpose of the State commencing negotiations for a consent determination. I am unable to reconcile these events with the objects of the NTA, particularly in the circumstances of this case. 44 As noted, I have not seen the material which was provided during this two year process. I am aware that it was extensive, and included 22 further affidavits. But I have seen the 12 affidavits which formed part of the claim. At this time, I am unable to understand why those affidavits do not themselves constitute cogent and comprehensive evidence, in admissible form, which provided a clear and credible basis for concluding that the Western Bundjalung people satisfied the requirements of s 223 of the NTA in respect of the land claimed. Indeed, had the evidence remained the same in a contested hearing then it seems to me that connection on the balance of probabilities would have been established by that material. Perhaps this should not be surprising given that according to Mr Correy, Senior Research Anthropologist at NTSCORP, the claim was only filed after he had already carried out two years of work. Why then did it take two years for negotiations to commence? 45 The affidavit of Ms Illiadis of the Crown Solicitor's Office says that the State applied the "State's credible basis" and the "State's credible evidence threshold" to the assessment and the additional information was the result of requests by an in-house historian and anthropologist. I do not know if the "State's credible basis" and the "State's credible evidence threshold" reflect the principles established by the Court. All I can say is that applying the requisite approach to the 12 affidavits I consider that a credible basis for connection was not merely apparent but obvious and compelling, that the evidence, had it remained the same, would have met the ordinary civil standard of proof in a contested hearing, and that, at the least, any further details that might have been seen as missing need not and should not have prevented negotiations commencing. 46 We also know that the approach of the State to connection is not the only issue which has the potential to lead to inordinate delays in these matters. Other issues which have that potential include the legal effect of the State's general reservation of all Crown land for future public purposes and whether that satisfies the description of a reservation of land "for public purposes or for a particular purpose" in s 47B(1)(b)(ii) of the NTA, the legal effect of various other tenures on native title, and the State's approach to tenure generally. 47 The question must then be asked, has justice been done in this case in a manner which is efficient, timely and at a cost which is proportionate to the importance and complexity of the matters in dispute? The evidence of Mr Correy of NTSCORP requires serious reflection by us all. He has been working on this matter for a period of seven years since early 2009 until late 2016. Dr Bennett, historian, has been working on the matter since January 2011. This is merely one side of the story. The resources committed by the State have also extended over years. How this is proportionate to the outcome remains unclear to me. How it reflects the State protecting the public interest as a whole, which includes the legitimate interests of the claim group and achieving the objects of the NTA, also remains unclear. Is this based on a conventional view of litigation in which both parties are legally represented so that the legally represented claimant group is expected to look after its own interests? Is it a result of the Department of Industry being both responsible for the management of Crown lands in New South Wales and yet at the same time the co-ordinator of the State's negotiation and resolution of native title claims? Whatever the position, this is clear; native title is not intended to be conventional litigation and the State cannot and is not intended by the legislation to function as a mere gatekeeper of a notion of the public interest to which native title rights and interests are (wrongly, given the Preamble to the NTA) perceived to be inimical. 48 An issue about exclusive possession, which I accept was important and complex, was then in focus, an issue which required bi-lateral on-country negotiations on 30 April 2014 and 29 July 2014, further evidence and submissions by the applicant on 10 February 2015, case management on 20 July 2015 and mediation thereafter, which resulted in the possibility of an Indigenous Land Use Agreement (or ILUA) being expressly raised at another case management hearing on 27 November 2015. Accepting the importance of any issue of exclusive possession, however, does not mean that negotiations as a whole had to stall while this was resolved. 49 Given the protracted negotiations between the parties about exclusive possession and the lack of any confidence on my part that a result would be reached either at all or in a timely manner, tenure orders to progress the matter were made on 23 June 2014 (this being information which would be required in any event for any consent determination and for contested litigation if necessary). At the case management hearing on 27 November 2015 I also ordered that points of claim and points of response be filed to try to crystallise the issues which were in dispute. In its points of response filed on 19 February 2016 the State put in issue all matters including that of connection under s 223 of the NTA. Whether that represented a considered response is unclear; but it was by no means helpful at that stage. Consistent with concerns about lack of funding, however, the applicant again sought to avoid a contested hearing and instead I agreed to a further process of mediation provided the genuinely outstanding issues were clearly identified (an object sought to be, but not achieved, by the points of claim and points of response). 50 The outstanding issues were identified on 24 March 2016 and a timetable for negotiations was submitted at a further case management hearing on 27 May 2016 proposing to deal with the issue of exclusive possession through an ILUA. The parties thereafter engaged in nine bilateral meetings, five bilateral on country meetings and a further six case management conferences before the Registrar, the ILUA negotiations being confidential. Ultimately, in accordance with orders I made on 12 January 2017, the Registrar convened another mediation in Grafton on 16 and 17 February 2017 and in Sydney on 23 February 2017. It is these mediations under the control of Registrar Stride, the first attended by the applicant's representatives and, importantly, regional officers of the various State departments involved, which finally bore fruit. The report to the Court about this mediation expressly noted that: In my opinion, an on country mediation including the relevant State agencies would have been extremely useful at an earlier stage as well as at the latter end of the negotiation as it cut through a lot of the confusion and delay resulting from the separate State and Applicant consultation processes. 51 Why is it that these extraordinary efforts of the parties, at no doubt great cost, proved unsuccessful until this year? The concerns identified above may provide an answer. 52 It should also be noted that, as is typical of native title claims generally in New South Wales, I first provisionally listed the matter for a consent determination hearing on 14 December 2015. This had to be extended on three occasions due to an inability for deadlines proposed by the parties to be maintained. Similarly, orders requiring the documents for the consent determination to be finalised and filed were made and repeatedly extended, with the documents being required to be filed by 28 April 2017, then 7 June 2017, then 8 August 2017. By 3 August 2017 the matter had to be listed yet again for further case management on 4 August 2017 given that the State's position was then that the ILUA could not be executed until 14 August 2017 (after the due date for the filing of the agreement under s 87 and joint submissions in support) and it remained unclear whether even the date of 8 August 2017 for that material to be filed could be achieved. On 4 August 2017, in circumstances where not a hint had been given by the State in advance and while the solicitor for the applicant was driving in northern New South Wales to arrange execution of the ILUA and other documents, the State disclosed for the first time that a meeting involving the Attorney General was scheduled for that afternoon and it was unclear at that time whether this matter could proceed by way of consent determination at all. Whether this was a result of the fact that the State had failed to comply with another order made on 1 May 2017 requiring substantial compliance with a timetable in which the brief to the Attorney General was to be provided on 20 June 2017 (an event which did not occur until a month thereafter) or for some other reason remains unclear. 53 What is clear, however, is that the State did not brief the Attorney General by the due date (20 June 2017) and thus did not obtain the Attorney General's instructions by the due date (31 July 2017). This threatened the consent determination hearing date to which all efforts of the parties and the Court had been directed for years, placed the applicant and the Court under heightened time pressures to be ready for the consent determination hearing (which involves a substantial logistical effort and cost, recently estimated to be $215,000 in legal costs alone), and caused unnecessary stress and distress to the claim group members who have no control of such events and must rely on the State to fulfil its obligations. As a result, on 4 August 2017 I had no choice but to extend the time for filing the relevant material yet again until 11 August 2017. 54 But the listing on 4 August 2017 still did not disclose all of the problems. We then discovered that Tenterfield Shire Council had been left behind by the process. There is no doubt that the Council had its own responsibility to ensure that it responded to information provided to it in a timely manner because it elected to remain a party to the proceedings. But we know this is not the first time that a council has been left behind because it also occurred in Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604. 55 The events involving the Council are particularly instructive. It seems that it was left to the Crown Solicitor's Office to chase the Council up about the consent determination by letter on 14 June 2017. Getting a consent determination across the line is a vast and complex project. It is a project that needs to be driven and, to be driven effectively, sufficient resources of the right kind need to be made available. As but one example, if the systems and processes of the State were effective, it is inconceivable that matters would have rested with a letter from a lawyer to the Council on 14 June 2017 until 7 August 2017 when the issue with the Council first manifested itself. Someone within the State surely would have picked up a telephone and called the Council to make sure the project was on track? As it was, to get the issue with the Council resolved took another three case management hearings before me and was not resolved until 23 August 2017, only a week before today. 56 As we also know, we ran out of time to deal today with land in which Grafton Ngerrie Local Aboriginal Land Council holds interests, and those lands have been excluded from the agreement between the parties and the proposed consent determination. As to the land of Jana Ngalee Local Aboriginal Land Council, a decision to transfer the land was made late in the day, and first notified to the Court in the joint submissions received on 15 August 2017. As to these events, despite it being common knowledge to those working in this area that the interaction between the NTA and the Aboriginal Land Rights Act 1983 (NSW) raises difficult legal and practical issues, it appears that the State did not respond to the proposals by the Aboriginal Land Councils for resolution of the native title claim to the extent it affected land in which they held an interest for about six months after the proposal had been submitted. Why this was so is not apparent. 57 We know too that the agreement under s 87A of the NTA, and thus the proposed consent determination, does not take effect immediately. It takes effect only if the ILUA executed by the parties on 14 August 2017 is registered. The ILUA is confidential to the parties but the intersection of the processes, time and effort dedicated to the agreement of the ILUA and the agreement under s 87A cannot be ignored. Because the negotiation of ILUAs directly impacts on the capacity to resolve native title claims in a manner which is efficient, timely and at a cost which is proportionate to the importance and complexity of the matters in dispute, the Court cannot remain passive merely because it is an ILUA which is causing delay. 58 As the ILUA is confidential I can say only these things. It is apparent from submissions on behalf of the first respondent in various matters that in New South Wales ILUAs are seen by the State as a means, at least in part, of confining the very rights which consent determinations acknowledge and recognise. Whatever else ILUAs might be intended to achieve, they are not intended to be the "price" for a negotiation in good faith of an agreement under ss 87 or 87A. Further, s 211 of the NTA which restricts the operation of State laws on native title rights and interests of certain kinds cannot be overlooked. Section 211 is in these terms: (1) Subsection (2) applies if: (a) the exercise or enjoyment of native title rights and interests in relation to land or waters consists of or includes carrying on a particular class of activity (defined in subsection (3)); and (b) a law of the Commonwealth, a State or a Territory prohibits or restricts persons from carrying on the class of activity other than in accordance with a licence, permit or other instrument granted or issued to them under the law; and (ba) the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and (c) the law is not one that confers rights or interests only on, or for the benefit of, Aboriginal peoples or Torres Strait Islanders. (2) If this subsection applies, the law does not prohibit or restrict the native title holders from carrying on the class of activity, or from gaining access to the land or waters for the purpose of carrying on the class of activity, where they do so: (a) for the purpose of satisfying their personal, domestic or non-commercial communal needs; and (b) in exercise or enjoyment of their native title rights and interests. (3) Each of the following is a separate class of activity: (a) hunting; (b) fishing; (c) gathering; (d) a cultural or spiritual activity; (e) any other kind of activity prescribed for the purpose of this paragraph. 59 In Brown v The State of South Australia [2010] FCA 875; (2010) 189 FCR 540 at [36], albeit indirectly, Mansfield J made the obvious point that it would not be appropriate for "a respondent party to endeavour to impede the proper recognition of native title rights and interests by seeking to secure agreement on an unrelated matter…when there was no bona fide dispute about the existence of the native title rights and interests asserted". His Honour continued in these terms: [38] …Resolution of claims by agreement is clearly a core aim of the NT Act. The aspirational statements in the Preamble point that way. In the context of the future act negotiations under Div 3 of Pt 2 of the NT Act, the obligation to negotiate in good faith is explicit: ss 31(1)(b) and 36(2): see eg Walley v Western Australia (1996) 67 FCR 366 at 376 per Carr J; Brownley v Western Australia (No 1) (1999) 95 FCR 152. In mediation under the NT Act, similarly, the parties are expected to mediate in good faith: s 94P(1) and 94Q. If there is no bona fide dispute about issues concerning a proposed consent determination, it would be a breach of any obligation to negotiate in good faith to use the carrot of consent to the determination as leverage to secure agreement on other matters such as a sustainable benefits term. [39] Of course, that is not to say that matters consequential upon or related to the recognition of native title rights and interests may not be the subject of negotiation. It is generally in the interests of all concerned if such matters can be addressed and agreed at the same time. If, as here, agreement on a sustained benefits term could not be reached after negotiation, it is appropriate that the consent determination be made (together with any other agreements to be reflected in the orders). 60 Yet only recently I was informed by submissions from senior counsel on behalf of the State, in the Widjabul matter, that the applicant in that matter should know that the State would not finalise an agreement under ss 87 or 87A of the NTA unless an ILUA was also agreed. It was difficult not to form the impression that what was meant was an ILUA confining native title rights and interests that might otherwise be recognised in an agreement under ss 87 or 87A. How does this, I ask, involve fidelity to the provisions of the NTA? 61 To return to this matter, the concern is this - if the systems and processes of the State mean that orders of the Court are routinely breached and outcomes for prima facie cogent claims can only be achieved after substantial delay, at substantial cost and subject to an ever present risk of last minute derailment then, from the Court's perspective, those systems and processes are inadequate. As indicated above, there have been routine requests for extensions of time and breaches of timetables by the first respondent in this matter which have had real adverse impacts. These events are not a result of the mere exigencies of litigation but speak of more fundamental systemic issues. 62 The solution is not simply giving more time. Experience demonstrates that the more time given, the later the same kinds of problems arise. Nor can it be said that the individuals at the coalface within the State are not working hard. But no matter how much individual goodwill and conscientiousness individual officers may apply to their responsibilities, they cannot overcome the effects of apparently systemic issues. 63 The solution is also not to require all native title claims to proceed to hearing forthwith. To do so would be inconsistent with the scheme of the NTA. It would also impose burdens on applicants which they may well be incapable of bearing given their limited resources and thus work yet further injustice to them. But this is not to say that specific issues, which repeatedly arise in New South Wales, should not be the subject of separate determination by the Court. Nor is it to say that applications for costs should not be made where appropriate. What is clear is that the case management processes of the Court alone cannot effectively combat the onerous and unjust effects of the current circumstances given the unique context of the NTA. Other States and Territories have confronted similar systemic difficulties, albeit many years ago before they developed new centralised systems and processes, as well as banks of knowledge about the NTA generally, and ss 87 and 87A agreements and ILUAs in particular. While those other States and Territories cannot necessarily be held up as an exemplar of how systems and processes can operate efficiently and fairly, surely it is possible for a State such as New South Wales at least to do as well? 64 The solution is for the State to determine, but it first must be accepted that there is a problem. The course of this matter alone should be sufficient to establish the existence of the problem. And this matter is not atypical. It may be accepted that sufficient resources must also be available, including the availability of a sufficient number of persons with the requisite knowledge of and experience in dealing with the many difficult issues of law, policy and practice which are associated with native title claims. While control of the application of resources is within the power of the State alone, it cannot reasonably be expected that the Court or applicants will continue to be burdened by the unfair impositions to which they are currently routinely exposed. 65 It is convenient now to summarise what this matter appears to show about systemic issues in respect of native title claims in New South Wales. I say appears to show because I accept that I can only proceed on the basis of what emerges in the context of the Court, which is by no means the whole of the story. But this is what this matter at least appears to show: (1) As noted, the Department of Industry, which is responsible for administering the Crown Lands Act 1989 (NSW) and thus is presumably responsible for ensuring that the effect of claims on rights and interests under that legislation are considered, is also responsible for co-ordinating the responses of all other government departments and agencies. Ms Illiadis's affidavit discloses, resolution of this matter required the agreement of the first respondent, the Minister administering the Crown Lands Act 1989 (NSW), the Minister administering the National Parks and Wildlife Act 1974 (NSW), the Minister administering the Fisheries Management Act 1994 (NSW), the Chief Executive Officer of the Forestry Corporation of NSW and the Chief Executive of the Office of Environment and Heritage. Whatever the arrangements behind the scenes, the present system means that the resolution of native title claims in New South Wales is extraordinarily time consuming, resource intensive, unwieldy and often ineffective. Given this, it should be no surprise that consent determinations in New South Wales, when we finally reach one after years of effort, are at risk of derailment. But this does not mean the current situation is acceptable. (2) The State has no published template ILUAs, nor any published guidelines about the kinds of ILUAs that might be appropriate. (3) The approach of the State to the operation of s 211 of the NTA and the relationship of that provision to ILUAs is not apparent from any published guideline or other document. (4) The State has no published guidelines explaining what it requires in respect of connection. Applicants and the Court remain in the dark as to what the State in fact requires to satisfy it to enable a consent determination to commence to be negotiated, let alone accepted. References to the "State's credible basis" standard are descriptions with no known substance. The delays of the kind involved in this matter, two years before negotiations commenced due to apparent issues about connection in the face of the information provided with the claim, cannot readily be reconciled with the duties of the parties. (5) The State did not seem to have sufficient resources of the necessary kind for effective negotiation and drafting of this consent determination. As noted, the negotiations routinely bogged down and only an extraordinary effort over two days and more by Registrar Stride ultimately cut through the quagmire. As to drafting, to describe the process after the successful mediation in February 2017 as problematic is an understatement. Drafts seem to have been prepared, circulated and amended by lawyers without the fundamental substance of the agreement first being reached between the parties. Lawyers seemed to be expected to draft in attempts to resolve issues which could not be resolved without clarity of instructions. To compound the difficulties, no-one appeared to have version control of drafts. Unilateral amendments were proposed by the State to the Court, without prior discussion with the applicant's representative. The State also did not adhere to timing requirements relating to drafting, presumably because it could not do so given the resources available for the required tasks. (6) As the events in the three weeks leading up to today disclose, it is apparent that no matter what date is fixed for the filing of all of the necessary material, the material is simply not filed when required or even a reasonable amount of time before the scheduled hearing date. In the present case, the burdens this has placed on everyone for ensuring the matter could be resolved today have been substantial. In no other kind of case where parties are legally represented would such conduct occur or be tolerated. That it routinely occurs in native title claims in New South Wales should be of the utmost concern to all of us. 66 These matters arise, it must be recalled, in a matter which was commenced in 2011 and completed in 2017 which, compared to native title matters generally in New South Wales, is swift. But six years is not swift or even acceptable compared to any proper standard for litigation in this country, and particularly not when the context is considered. I do not know the public resources which have been applied to this matter over the six years but, given the history set out above, it seems safe to say that they have been enormous. How this accords with the terms of ss 37M and 37N of the Court Act is not apparent. 67 It is also of fundamental importance for all parties to appreciate that the observations of Emmett J in Munn v Queensland [2001] FCA 1229; (2001) 115 FCR 109 at [29] which appeared in the joint submissions about the State appearing "in the capacity of parens patriae to look after the interests of the community generally" were made on the basis of the indisputable assumption that the claimants are also part of the community for which the State is responsible. Nor should it be assumed that the "interests of the community" are somehow in opposition to the recognition of native title rights and interests. Any such assumption would conflict with the terms of the Preamble to the NTA. And his Honour continued as follows: 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. 68 These thresholds, a "real interest" and "cogent material" ought to be recognised as readily satisfied. Further, none of these considerations - the existence of a "real interest" or the need for "cogent" material" - are intended to or can displace the fundamental obligation of every party to ensure compliance with the overarching purpose of the civil procedures of the Court including the objective that disputes are resolved "at a cost that is proportionate to the importance and complexity of the matters in dispute" (s 37M(2)(e) of the Court Act). 69 It should also be said that the notion that all primary native title claims will be resolved in the foreseeable future is a quickly receding fantasy given the day-to-day reality with which we are confronted. In New South Wales we still have a matter in the Court remaining unresolved from 1998, a matter from 2001, and a matter from 2007, as well as numerous more recent claims. 70 In conclusion on these issues, I am not satisfied that the overarching purpose of the civil procedure rules in the Court Act has been met in this case, indeed I believe it has not, and I currently have no confidence that we can continue down our present path and comply with the duties to which are all subject for the many matters which remain to be resolved unless there is a change of approach within the State of New South Wales to dealing with native title claims, particularly claims which are prima facie cogent and thus call for a timely, fair and sensible resolution by agreement. 71 All of this said, it should be apparent from the discussion above that I am satisfied it would be appropriate to make orders consistent with the terms of the agreement which the parties have reached and which they have placed before the Court. The notification period has ended as required by s 87A(1)(b) of the NTA. The agreement reached as provided for in s 87A(1) of the NTA is the result of Herculean labour on behalf of the representatives of the applicant and the State. The fact that these representatives managed to do what they have done, culminating in the agreement, the proposed consent determination, and the hearing today is testament to their individual conscientiousness and dedication given everything I have said above. 72 Further, the terms of the agreement, in writing signed by or on behalf of the parties, have been filed with the Court and an order consistent with the terms of the agreement is within the power of the Court and it is appropriate to make such order in accordance with the requirements of ss 87A(1) and (4) of the NTA. The Federal Court Chief Executive Officer has also given notice to the parties to the proceeding that the proposed determination of native title has been filed with the Court as required by s 87A(3) of the NTA. I note that the parties have agreed that the determination will only take effect on the registration of the ILUA which they have executed. The orders are thus contingent. But the mere existence of contingency does not place the orders beyond power or make them inappropriate. The contingency is clear. The effects of the contingency occurring or not occurring are clear. On registration of the ILUA the determination takes effect. If the ILUA is not registered before 28 May 2018 or such further time as may be ordered, the determination will not take effect and the matter will be listed before the Court for directions. This is the agreement which the parties have reached and effect should be given to the agreement. The terms of the determination satisfy the requirements of s 225 of the NTA which provide 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 the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a 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. 73 In accordance with s 55 of the NTA, it is also agreed and to be determined that the native title rights and interests are to be held on trust by the aptly named Ngullingah Jugun (Our Country) Aboriginal Corporation ICN 8672 under s 56(3) of the NTA which will perform the functions set out in s 57(1) of the NTA and the Native Title (Prescribed Bodies Corporate) Regulation 1999 (Cth). 74 From today all Western Bundjalung People can say now Ngullingah Jugun (our country) and know that this is true not only under their traditional customs and laws, but also under the law of Australia as a whole. I certify that the preceding seventy four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.
SCHEDULE OF PARTIES NSD 2300 of 2011 Respondents Fourth Respondent: BARYULGIL LOCAL ABORIGINAL LAND COUNCIL Fifth Respondent: CASINO BOOLANGLE LOCAL ABORIGINAL LAND COUNCIL Sixth Respondent: GRAFTON NGERRIE LOCAL ABORIGINAL LAND COUNCIL Seventh Respondent: JANA NGALEE LOCAL ABORIGINAL LAND COUNCIL Eighth Respondent: JUBULLUM LOCAL ABORIGINAL LAND COUNCIL Ninth Respondent: MOOMBAHLENE LOCAL ABORIGINAL LAND COUNCIL Tenth Respondent: NEW SOUTH WALES LOCAL ABORIGINAL LAND COUNCIL Eleventh Respondent: NTSCORP LIMITED Twelfth Respondent: ROBYN ANN BRAMLEY Thirteenth Respondent: LYNTON JAMES RHODES Fourteenth Respondent: MARK HAYDEN WINN Fifteenth Respondent: ALAN HARTLEY Sixteenth Respondent: RAYMOND CYRIL MORRIS AND DEBRA IRENE MCMURTRIE Seventeenth Respondent: TELSTRA CORPORATION LIMITED Eighteenth Respondent: TRANSGRID
Western Bundjalung People
Attorney General of New South Wales
(2010) 189 FCR 540
(2001) 115 FCR 109
(2002) 117 FCR 6
(1996) 67 FCR 366
(1999) 95 FCR 152
The Court made orders determining that native title exists in the Native Title Area, is extinguished in the Extinguished Area, is held in trust by Ngullingah Jugun (Our Country) Aboriginal Corporation, and takes effect upon registration of the ILUA. There was no order as to costs. The matter was listed for further directions if the ILUA is not registered by 28 May 2018.