Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993

Clarence Valley

Registered on the National Native Title Register

Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993

Between:

Lillian Williams, Ron Heron, Vivienne King, Eileen McLeay, Judy Breckenridge, Diedre Ann Randall, William Walker, Noeline Kapeen, Ferlin Lee Laurie, Clarence Randall, and Ken Laurie on behalf of the Yaegl People (Applicants) and Attorney General of New South Wales, Clarence Valley Council, Richard Crofton, The Commonwealth of Australia, and Birrigan Gargle Local Aboriginal Land Council (Respondents)

Judge: Jagot J

Where made: New South Wales

Determination:

Native title exists in the entire determination area. It consists of non-exclusive native title rights.

Native title is held by the Yaegl People.

Non-exclusive native title rights and interests:

Native title rights and interests have been recongised in land and waters located between Woody Head, Wooli and Ulmarra. As set out above, the area is divided into an Inner Extent Native Title Area and an Outer Extent Native Title Area. The native title rights and interests in the Outer Extent Native Title Area (which relate to the Dirrangun reef) are more limited, as described below.

Native title rights existing in both the Outer Extent Native Title Area and the Inner Extent Native Title Area are:

• the right to access, to remain on and to traverse those areas;
• the right to maintain and to protect places, objects and areas of importance or significance under traditional laws and customs on those areas; and
• the right to be accompanied on those areas by:
  (i) spouses, partners or parents of the native title holders, together with their children and grandchildren; or
  (ii) people required under traditional laws and customs for the performance of cultural activities, practices or ceremonies; or
  (iii) people requested by the native title holders to assist in, observe or record cultural activities, practices or ceremonies.
  

Native title rights in the Inner Extent Native Title Area also include:

• the right to access resources in those areas and to take, use, share,
  offer and exchange resources, including traditional trade, in those
  areas for non-commercial purposes.

Non-native title rights and interests that exist in the determination area:

Other interests in the determination area, as at 31 August 2017, are set out in Schedule 3 and include:

• rights and interests of Birrigan Gargle Local Aboriginal Land Council
  pursuant to undetermined Aboriginal land claims made under s 36 of the Aboriginal Land Rights Act 1983 (NSW);
• rights in relation to the care, control and management of (and access to) reserves;
• rights of the holder of mining or petroleum interests;
• rights relating to licences or occupancies granted under the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW);
• rights relating to leases, licences and permits granted or issued under the Fisheries Management Act 1994 (NSW);
• rights of the holders of leases, licences and permits granted or issued under the National Parks and Wildlife Act 1974 (NSW) and associated Regulations;
• rights and interests under the care, management and control of the NSW Office of Environment and Heritage;
• various electricity and energy supply interests;
• the rights and interests of Clarence Valley Council, the State of New South Wales, and the Commonwealth;
• rights and interests held under the laws of the Commonwealth and the laws of the State of New South Wales;
• rights and interests of the public by law in relation to fishing, navigation and international right of passage through sea;
• public access to certain areas pursuant to section 18 of the Native Title (New South Wales) Act; and
  
• the rights of an employee or agent of the State of New South Wales, the Commonwealth, or any Local Government Authority to access the area and carry out actions as required in the performance of their legal duty.

These rights and interests co-exist with the native title rights and interests and, to the extent of any inconsistency, prevail
over but do not extinguish the native title rights and interests.

Yaegl Traditional Owners Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth). The native title is held in trust for the native title holders.

Background

In 1996 and in 2011, the Yaegl People filed native title claims in relation to land and waters along the north coast of New South Wales (the claim area). On 25 June 2015, in Yaegl People #1 v Attorney General of New South Wales [2015] FCA 647 (Yaegl People #1), the continuing native title rights and interests of the Yaegl People in land to the west of the mean high water mark of the ocean bordering the claim area (the Land Claim) was recognised. However, the claimed native title rights over the waters to the east of the claim area (the Sea Claim) remained for future determination. This claim included the Dirrangun reef, a sacred site for the Yaegl people.

The long awaited decision in relation to the Sea Claim was handed down in Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 (Yaegl People #2). As at the date of the judgment, a native title claim over ocean had never been granted in the State of New South Wales. The finding that 'native title rights and interests in the waters off the coast of Yaegl country should be recognised' in Yaegl People #2 was therefore an historic decision. Both because of its significance for the Yaegl people, and because of the precedent it set for other groups on the east coast of Australia.

The importance of the decision is reflected in the judgment itself, in which Jagot J noted that '[t]he significance of the recognition of these rights of the Yaegl People, the first consent determination relating to the sea in New South Wales, cannot be overstated' (Yaegl People #2, [10]).

Details of Judgment

The evidence advanced by the Yaegl people to support the Sea Claim was held to be 'detailed and convincing'. However, due dates for the filing of relevant material had to be repeatedly extended. Consequently, a case management hearing ensued in 2017, which was held to reveal 'systemic incapacities, primarily on the part of the State, to comply with orders in native title proceedings' (Yaegl People #2, [7]).

Finally, after seven years of negotiations between the parties, an agreement was reached on the proposed determination of native title in relation to the claimed area. This agreement and the terms of the consent determination were filed with the Court.

At an on-country hearing at Yamba, the Federal Court recognised the Yaegl people's rights in relation to the Sea Claim. Jagot J gave significant weight to the passage of time since native title proceedings were commenced (over 20 years since the initial Land Claim, and 7 years to resolve the Sea Claim). In light of this, his Honour acknowledged the 'fortitude, tenacity and courage of the Yaegl People'. His Honour further noted that this endurance was unsurprising given the continuation of the Yaegl Peoples' culture 'for millennia before European settlement' and despite the 'injustices to which they have been subjected as a result of the legal and practical dispossession effected by European settlement' (Yaegl People #2, [21]).

Native title exists in the entire determination area.

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