Western Bundjalung People v Attorney General of New South Wales [2018] FCA 970

Northern Rivers Area

Registered with the National Native Title Tribunal on the Native Title Register.

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, Grafton Ngerrie Local Aboriginal Land Council, Jana Ngalee Local Aboriginal Land Council, New South Wales Aboriginal Land Council, and NTSCorp Limited (Respondents)

Judge: Jagot J

Determination

Native title exists in parts of the determination area

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

Native title holders

The Western Bundjalung People.

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

These rights exist over the area described in Schedule One Parts 1, 2, and 3 and include the rights to:

• enter, traverse, and remain on the land;
• camp on, erect shelters, and live on the land but not permanently;
• take and use the water for personal, domestic, and communal purposes though not amounting to the right to control the use or flow of the water in any rivers or lakes;
• gather and use traditional resources as well as material for making tools and hunting implements, and making artwork and musical instruments;
• hunt and fish;
• light fires for domestic purposes, but not to clear vegetation;
• engage in cultural activities including: visiting places of cultural or spiritual importance and lawfully protecting those places to preserve their integrity, conducting and participating in ceremonies and rituals, holding cultural gatherings, and passing on knowledge about the physical and spiritual attributes of places of importance.
• be accompanied by persons who, though not native title holders, are: required by traditional law and custom for ceremonies or cultural activities, or required by the native title holders to assist in, observe, or record traditional activities in the area; and
• be accompanied by non-native title holding spouses, partners or parents of native title holders, together with their children and grandchildren.
  

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

• the rights and interests of Grafton Ngerrie Local Aboriginal Land Council due to undetermined Aboriginal land claims made under s 36 of the Aboriginal Land Rights Act 1983 (NSW);
• the rights and interests of Grafton Ngerrie Local Aboriginal Land Council as the holder of a freehold title;
• the rights and interests of Grafton Ngerrie Local Aboriginal Land Council in relation to land granted subject to native title under s 36(9) of the Aboriginal Land Rights Act 1983;
• the rights of State, Local Government and other organisations or persons who have the care, control and management of any reserves within the area subject to state and federal laws;
• the rights of persons entitled to access and use reserves in the area that they are reserved for, subject to any statutory limitations;
• the rights of those who hold mining and/or petroleum interests;
• the rights of any holder of a water licence or permissive occupancies, under the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW), as of the date of the determination;
• the rights of the holders of specified leases, licences and permits granted or issued under the Fisheries Management Act 1994 (NSW) and regulations made under that Act;
• Other rights and interests under the care, management and control of the Department of Primary Industry - Fisheries subject to state and federal laws;
• the rights of the New South Wales Department of Industry - Lands, and employees or agents of the department under the Crown Lands Act 1989 (NSW) and regulations made under that Act;
• the rights and interests of Local Councils as councils under the Local Government Act 1993 (NSW);
• the rights and interests granted by the Crown in right of New South Wales, of the Commonwealth due to statute, or under regulations made due to legislation;
• the rights and interests held due to the operation of State or Federal law;
• the rights and interests of members of the public under common law or statute;
• the rights and interests relating to any existing, as at the date of determination, public access to and enjoyment of: waterways, bed and banks of waterways, traveling stock reserves, and areas that were public places at the end of 31/12/1993; and
• the rights of employees, agents, or instrumentality of the State of New South Wales, The Commonwealth, and any Local Government Authority to access the area and carry out their common law or statutory duties.
  

See Schedule Four for further information about the non-native title rights and interests.

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

The Ngullingah Jugun (Our Country) Aboriginal Corporation Registered Native Title Body Corporate (RNTBC) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and acts as agent for the Western Bundjalung People.

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

Background

The Western Bundjalung People made a native title claim over land and waters in the Northern Rivers area of New South Wales on 19 December 2011. The determination regarding the majority of that claim was made on 29 August 2017, with parties agreeing that there be no determination in relation to specified remaining land and waters in the area of the application. This application, Part B, relates to that previously excluded land which comprises several separate areas to the north and north-west of Grafton.

Details of Judgment

The Court was satisfied that the requirements for a determination were met, making orders to give effect to the agreement of the parties. The Court noted that the timely manner and clear drafting of the material was particularly gratifying and recognising its importance.

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