Torrens & Ors on behalf of the Western Bundjalung Traditional Owners v Attorney General of New South Wales [2017] FCA 992

North East New South Wales 

The determination area is situated between Casino, Grafton, Tenterfield, and Stanthorpe in northern NSW. For detailed coordinate information see Schedule Three Part 1 and 2, attached below under documents. The area is within the jurisdiction of the Clarence Valley Council, Glen Innes Severn Shire Council, Kyogle Council, Richmond Valley Council, Tenterfield Shire Council.

Registered with the National Native Title Tribunal on the Native Title Register 29 August 2017.

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

the Attorney General of New South Wales, Clarence Valley Council and Tenterfield Shire Council (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

Native title is held by the Western Bundjalung Traditional Owners. 

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

These rights exist over the area described in Schedule 1 of the determination and includes the rights to: 

• enter, traverse across and remain on the land; 
• camp on, erect shelters and love but not to permanently camp on, possess or occupy the land; 
• take and use the water for personal, domestic, communal purposes (including cultural purposes) but not extending to a right to control the use and flow of the water in any rovers or lakes; 
• gather and use the traditional natural resources (other than water) including food, medicinal plants, timber, stone, charcoal, ochre, and resin as well as materials for fabricating tools and hunting implements, and making artwork and musical instruments; 
• hunt and fish; 
• light fires for domestic purposes, but not for the clearance of vegetation;
• engage in cultural activities including visiting places of cultural or spiritual importance and protecting those places by carrying out lawful activities to preserve their physical or spiritual integrity, conducting and participating in ceremonies and rituals including in relation to birth and death, holding cultural gatherings, and passing on knowledge about the physical and spiritual attributes of places of importance; and
• be accompanied by persons who, though not Native Title Holders, are spouses, partners, or parents of Native Title Holders, together with their children and grandchildren, people whose presence is required under traditional laws and customs for the performance of cultural activities, practices, or ceremonies, and people requested by the Native Title Holders to assist in, observe or record cultural activities, practices or ceremonies. 

Other rights and interests in the determination area include:

• those held by Aboriginal Land Councils: the New South Wales Aboriginal Land Council, Baryulgil Local Aboriginal Land Council, Casino Boolangle Local Aboriginal Land Council, Jana Ngalee Local Aboriginal Land Council, Moombahlene Local Aboriginal Land Council, and Jubullum Local Aboriginal Land Council (the 'Aboriginal Land Council Respondents') and any other Aboriginal Land Councils to undetermined Aboriginal land claims made under s 36 of the Aboriginal Land Rights Act 1984 (NSW) in respect of lands in the Native Title area. This includes the right to have each claim determined by law, and subject only to a determination if the land is claimable Crown land; 
• those held in Aboriginal Corporation Land: that is, rights and interests held in freehold title and rights and interests held by Aboriginal Corporations to use, manage, control, hold or dispose of the areas of land or waters in the Native Title Area. These Aboriginal Corporations include Tabulam Aboriginal Corporation, Mall-Bunoogah Aboriginal Corporation, Jubal Aboriginal Corporation, and Gungyah Ngalingnee Aboriginal Corporation;
• the rights of State, Local Government, and other organisations or persons who have the care, control and management of any Reserves within the Native Title Area, and the rights of persons entitled to access and use the Reserves for the purposes for which they are reserved;
• mining and Petroleum Interests; 
• water interests: the rights of any holder as at the date of this determination of any licences or legal occupancies; 
• fishing interests: the rights of the holders of leases, licences, and permits, other rights and interests under the care and management and control of the Department of Primary Industry - Fishing and its employees
• national Park Interests: the rights of holders from time to time of leases, licences, and permits, the rights of NSW Office of Environment and Heritage and employees who have the care, control, and management of any reserves; 
• rights and interests of any holder of a forest permit under the Forestry Act 2012 (NSW);
  
• forestry interests: the rights of the holders from time to time of leases, licences and permits, other rights and interests under the care, management, and control of the Forestry Corporation of NSW, and the rights of the Forestry Corporation of NSW and any of its employees; 
• Crown Land Interests: the rights of holders from time to time of leases, licences and permits, any other rights and interests under the care, management, and control of the NSW Department of Industry - Lands, and any of its employees or agents;
• those of Telstra Corporation Limited;
  
• those of Electricity and Energy Supply companies;
• the rights and interests of the Clarence Valley Council and Tenterfield Shire Council; 
• the rights and interests under licence number LI 355173; 
• any rights and interests made by of law of New South Wales or of the Commonwealth;
• any existing public access to and enjoyment of waterways, the bed and banks or foreshore of waterways, travelling stock reserves, and areas that were public places at the end of 31 December 1993; and
• rights of an employee, agent or instrumentality of NSW, the Commonwealth, or of any Local Government Authority.

See Schedule 6 located in the Extract 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 Jugan (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 holds the native title in trust for the Western Bundajalung Traditional Owners. 

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

Background

On 19 December 2011, the Bundjung Traditional Owners made a native title determination application to the Federal Court of Australia. The determination takes effect upon the registration of an indigenous
land use agreement between the Western Bundjalung People and State (the Western Budjalung Settlement ILUA). For a map of the Extinguished Area, see Schedule 2 of the determination, Parts One and Two, attached below.

Details of Judgement

The parties reached an agreement about the terms of the determination, being that native title exists in part of the Determination area (identified in Schedule One and depicted in Annexure Maps A and B) and is extinguished in another part of the Determination Area (identified in Schedule Two and depicted in Annexure Maps A and B). The parties also agreed that there be no determination of native title in remaining lands or waters within the area of the application. The terms of the agreement are pursuant to s 87A and 94A of the Native Title Act 1993 (Cth). The court was satisfied that a determination of native title was within the court's power.

Native title exists in part of the determination area.

Related Entries

Documents

Glossary