Williams on behalf of the Gumbaynggirr People and Attorney General of New South Wales [2019] FCA 1915

Gumma Peninsula and Islands

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

Between: Peter Gary Williams, Clive Joseph Robin Bryant, Colin Jarrett, Briget Jarret, Michele Donovan, Belinda Donovan and Annika Rotumah (Applicant) and Attorney General of New South Wales, Nambucca Heads Local Aboriginal Land Council, Austone pty ltd (Respondents)

Judge: Robertson 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 Gumbaynggirr People who are Aboriginal persons who are descendants (including by adoption) of the Gumbaynggirr ancestors or persons who have otherwise been incorporated as a member of the Gumaynggir People in accordance with Gumbaynggirr laws and customs. For a detailed description of the recognised Gumbaynggirr ancestors see the extract of the determination attached below under documents.

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

These rights exist over the area described in Schedule 1 and include the rights to:

• have access to and camp on;
• take and use waters on or in;
• hunt and gather natural resources;
• take fish in the temporary waters occurring above the mean high water mark;
• conduct ceremonies;
• teach the physical, cultural and spiritual attributes of places and areas of importance; and
• have access to, maintain and protect from physical harm, sites of importance under the Gumbaynggirr People's traditional laws and customs.

Native title does not exist over minerals as defined in the Mining Act 1992 (NSW), or petroleum, geothermal energy, and geothermal energy resources as defined in the Petroleum (Onshore) Act 1991 (NSW).

Native title rights and interests are exercised for personal, domestic, and non-commercial communal purposes.

Other rights and interests in the determination area include:

• four estates in fee simple held by the Nambucca Heads Local Aboriginal Land Council pursuant to the Aboriginal Land Rights Act 1983 (NSW);
• electricity and energy supply interests relating to the access, operation, control, use, and maintenance of existing facilities and infrastructure;
• local government interests of the Nambucca Valley Council as a council constituted under the Local Government Act 1993 (NSW);
• licenses and permits granted by the Crown;
• rights held by reason of the force and operation of state or federal law;
• rights held pursuant to s 18 of the Native Title (New South Wales) Act 1994 (NSW), including public access to the enjoyment of any waterways as well as its bed, bank and foreshore, travelling stock reserves and areas that were public places on 31 December 1993;
• government employees' right to access the area and carry out actions as required by the performance of their legal duty.

See Schedule 4 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 Wanggaan (Southern) Gumbaynggirr Nation 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 Gumbayngirr People.

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

Background

The original Gumbaynggirr native title application was made on 16 December 1996, then amended in August 2014 in accordance with the terms of the parties' agreement towards the determination made with their consent in Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales (2014) [5].

The excised land that concerns this current application, which was made on 15 August 2016, consists of three parcels of land on the Gumma Peninsula and three parcels that are sand islands adjacent to the Gumma Peninsula [4].

The applicant and first respondent provided joint written submissions seeking to honour the agreement they made in Phyball so that the Gumbaynggirr People's native title will be recognised across the whole area of their original naive title application [6].

Barry Phyball, a senior Gumbayngirr Elder and one of the persons comprising the applicant passed away before the determination was finally made in November 2019 [8].

Details of Judgment

The Court determined that it was within the Court's power to give effect to the parties agreement to recognise the Gumbaynggirr People's native title over part of the Determination Area.

Native title exists in parts of the determination area.

Related Entries

Documents

Glossary