Murray Butcher & Ors on behalf of Barkandji Traditional Owners v Attorney-General of New South Wales [2017] FCA 971

Far West New South Wales

Registered with the National Native Title Tribunal on the Native Title Register 13/07/2017. 

Between: Murray Butcher, Derek Hardman, Jennifer Whyman, William Bates, Maureen O'Donnell, Mary-Ann Marton, Cyril Hunter on behalf of the Barkandji Traditional Owners (Applicant) and Attorney-General of New South Wales, Menindee Local Aboriginal Land Council, Wilcannia Local Aboriginal Land Council, New South Wales Aboriginal Land Council (Respondent)

Judge: Griffiths J 

Determination

Native title exists in parts of the determination area.

It consists of exclusive and non-exclusive native title rights and interests.

Native title holders

Native title is held by the Barkandji Traditional Owners. 

Exclusive native title rights and interests over part of the determination area

Native title exists in the land or waters in the native title area, outlined in Schedule One of the Part B Determination, and native title has been extinguished in relation to the extinguished area, outlined in Schedule Two of the Part B Determination. Native Title consists of the exclusive area and the Non-exclusive area, outlined in Part 1 and Part 2 of Schedule One. 

The right to possess, occupy, use, and enjoy the area to the exclusion of areas. The 'exclusive areas' of native title are described in Schedule One to the Federal Court decision. The exclusive area consists of the following lots: 

• Lot 4769 in DP 767984 (ID6280);
• Lot 355 in DP 761037 (ID6497);
• Lot 2211 in DP 764218 (ID6604);
• Lot 1 in DP 754372 (ID10964);
• Lot 4 in DP 754390 (ID23001);
• Lot B in DP 438726 (ID23164);
• Lot 6 in DP 754390 (ID23193);
• Lot A in DP 438726 (ID23270);
• Lot 3728 in DP 766141 (ID6182);
• Lot 3445 in DP 765734 (ID2057); and
• Lot 4143 in DP 766648 (ID6163).

Non-exclusive native title rights and interests over part of the determination area

The non-exclusive rights and interests held by the Barkandji Traditional Owners include and are identified in Schedule One - Native Title Area, Part 2 include:  

• the right to enter, travel in or remain on the area;
• the right to take and use natural resources (except water); 
• the right to take and use water for personal, domestic and communal purposes, but not the right to control the use and flow of the water in any rives or lakes which flow through or past or are within the land of two or more occupiers; 
•  the right to camp and erect temporary shelter and structures; 
• the right to light fires for domestic purposes, not vegetation clearance; 
• the right to engage in cultural activities, to conduct ceremonies, to hold meetings, to participate in cultural practices, including burials; 
• the right to have access to, to maintain and to protect from physical harm sites and places of importance under traditional laws and customs; 
• the right to teach on the area the physical, cultural and spiritual attributes of places and areas of importance; 
• the right to hunt and fish; and
• people requested by the Native Title Holders to assist in, observe or record cultural activities.

The non-exclusive area consists of the following lots: 

• the area to the south east of the Levee Easement at the eastern extremity of Lot 6, Section 38, DP 759074 (part of ID 2966); 
• Lot 7309 in DP 1183405 (ID7446); and 
• the area comprising the Lagoon within Lot 3 in DP 610639 (part of ID 6112).

Non-exclusive native title rights do not confer the possession, occupation, use or enjoyment of the non-exclusive area.

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

• Wilcannia and Menindee Local Aboriginal Land Councils: any activity that is required or permitted by or under and done in accordance with the Councils' Interests, may be exercised and enjoyed in spite of the existence of the native title rights and interests;
• Reserves: the rights of organisations or persons who have the care, control and management of any reserves within the Non-Exclusive area; the rights of the holders of leases, licences or permits in respect of, or easements or rights way over, any reserves within the Non-Exclusive area; the rights of persons entitled to access and use any reserves within the Non-Exclusive area for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights;
• Mining and petroleum interests: native title does not exists in minerals defined in the Mining Act 1992 (NSW) and the Mining Regulation 2010 (NSW), and petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW) and the Petroleum (Submerged Lands) Act 1982 (NSW);
• Murray-Darling Basin Authority: rights and interests relating to the responsibility to perform functions, duties and powers relating to the management of the Basin water resources pursuant to the Water Act 2007 (Cth), Water Act 1912 (NSW), and the Water Management Act 2000 (NSW);
• Telecommunication interests: rights and interests of the Telstra Corporation Ltd and any other holder of a carrier licence under the Telecommunications Act 1997 (Cth), in the capacity of the owner or operator of telecommunication facilities in the Determination Area. This includes the right to inspect and access the land, to install and operate telecommunications facilities, and alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
• Electricity supply interests: an energy corporation defined as such by the Energy Services Corporations Act 1995 (NSW) can exercise powers, functions and rights as owner and operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure within in the Determination Area. This includes the right to access, use, maintain, repair, replace, upgrade or generally deal with existing facilities and infrastructure. This includes rights and interests of Powercor Australia Ltd as the owner or operator of electricity facilities within the area;
• Local Government interests: rights and interests of the Broken Hill City Council and the Wentworth Shire Council under the Local Government Act 1993 (NSW);
• Rights and interests relating to licences and permits granted by the Crown in the capacity of New South Wales or the Commonwealth;
• Rights and interests of members of the public arising under common law; 
• Rights of the public to access and enjoy the land; and 
• Rights of government employees to access the Native Title Area in order to carry out required functions or a statutory/common law duty.

In the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

The Barkandji Native Title Group Aboriginal Corporation Trustee Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and holds the native title rights and interests in trust for the Barkandji Traditional Owners. 

Full text of the determination is available via the URL link above.

Background

A native title determination application was originally filed on 8 October 1997, and was accepted for registration pursuant to s 190A of the Native Title Act on 2 November 2006 after several amendments.

In 2015, the Federal Court recognised that the Barkandji and Malyangapa People held native title over part of the land or waters within the external boundaries of the application. This determination is known as the Part A Determination. In the Part A Determination, it was concluded that that no determination could be made regarding some parcels of land, largely due to tenure issues that would have to be dealt with before agreements about native title rights and interests could be reached. These parcels of land were known as the Excluded Area and can be found in Schedule 6 of the Part A Determination, referred to in documents.

On 28 February 2017, the Barkandji Traditional Owners were granted leave to file a further amended application to reduce their claim over the Excluded Area. On 16 March 2017, another amendment was made to further reduce their claim over the Excluded Area. On 13 April 2017, the National Native Title Tribunal accepted the 16 March 2017 registration of the further amended application, comprising of 73 parcels of land and waters, 52 of which were part of the Excluded Area. The added 21 parcels were land that the parties were not aware of at the time of the Part A Determination. It has been agreed that native title has been extinguished in these 21 parcels of land. This decision is the largest native title grant in NSW to date. 

Details of Judgment

Following the process of case management, mediation and negotiation, the parties have reached an agreement as to the terms of the recognition of native title rights and interests held by the Barkandji Traditional Owners. The agreement consists of a determination related to both the existence and non existence of native title rights in relation to lands or waters, see Wyman on behalf of the Bidjara People v State of Queensland (No 4) [2014] FCA 93. These lands and waters are covered by the application filed on the 16 March 2017. The terms of the agreement are pursuant to section 87A of the Native Title Act 1993 (Cth), thus the Federal Court is satisfied the determination of native title can be determined by the Court as it is consistent with section 94A and section 225 of the Native Title Act.

Native title exists in parts of the determination area. 

Related Entries

Documents

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