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.