Pacey on behalf of the Gumbaynggirr People and Attorney General of New South Wales [2019] FCA 1916

Wenonah Head, mid-north coast NSW

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

Between: Richard Pacey, Christine Witt, Marion Witt and Frances Witt on behalf of the Gumbaynggirr People (Applicant) and Attorney General of New South Wales and Coffs Harbour and District Local Aboriginal Land Council (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 the Aboriginal persons who are:

• the biological descendants of the persons listed in paragraph 3(a);
• persons who have been adopted into the families of those persons (and the biological descendants of any such adopted persons); and
• persons who have been otherwise incorporated, or who are direct descendants of a person who has been otherwise incorporated, as a member of the Gumbaynngirr People and who identify as, and are accepted as a Gumbaynggirr person, in accordance with Gumbaynggirr laws and customs.

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

These rights and interests exist over the area described in Schedule One, and include rights to:

• access, remain on and traverse the land and waters;
• camp and live on the land;
• hunt, fish and gather on the land and waters;
• take, use, share and exchange natural resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;
• conduct ceremonies on the area;
• be buried and bury native title holders within the area;
• maintain places and areas of importance;
• teach on the area the physical and spiritual attributes of the area;
• hold meetings on the area;
• light fires for personal and domestic purposes;
• to be accompanied by defined persons who are not native title holders.

Native title does not exist in minerals as defined in the Mining Act 1992 (NSW) and petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW) and the Petroleum (Submerged Lands) Act 1982 (NSW).

Any native title rights and interests granted do not confer, among other things, possession to the exclusion of all others.

Native title rights and interests in relation to the land or waters in the native title area are subject to and exercisable in accordance with:

• the laws of the State of New South Wales and of the Commonwealth;
• the traditional laws acknowledged and customs observed by the native title holders; and
• the terms and conditions of the Indigenous Land Use Agreements (ILUAs) referred to in paragraphs 1, 3 and 4 of Schedule Two. These include the Gumbaynggirr (Boney) Settlement ILUA (NNTT file no.: NI2018/004); the Gumbaynggirr Wenonah Head ILUA (NNTT file no.: NI2018/005); and any other ILUA, which, after 26 November 2019, is registered on the Register of ILUAs in relation to any land or waters in the native title area.

Other rights and interests in the determination area:

The rights and interests of Coffs Harbour and District Local Aboriginal Land Council include:

• its right to the transfer of an estate in fee simple in part of the area, as holder of an estate in fee simple in part of the area;
• its rights and interests as holder of an estate in fee simple in part of the area;
• its rights and interests pursuant to the Gumbaynggirr Wenonah Head ILUA (NNTT file no.: NI2018/005).

Fishing interests include:

• the rights of the holders of leases, licences and permits under the Fisheries Management Act 1994 (NSW);
• other rights and interests under the care, management and control of the New South Wales Department of Planning, Industry and Environment—Fisheries;
• the rights of the New South Wales Department of Planning, Industry and Environment—Fisheries and its employees or agents under the Fisheries Management Act 1994 (NSW).

Rights and interests over Crown Land:

• the rights of the holders of leases, licences and permits under the Crown Land Management Act 2016 (NSW);
• other rights and interests under the care, management and control of the New South Wales Department of Planning, Industry and Environment.

Local government interests include:

• the rights and interests of the Bellingen Shire Council.

Other interests generally:

• rights and interests, including licences and permits, granted by the Crown;
• rights and interests arising under the laws of the State of New South Wales or of the Commonwealth;
• rights and interests of members of the public, including but not limited to the public right to fish; 
• rights and interests of members of the public arising under the Public Access Easement across part of the area;
• under ss 16 and 18 of the Native Title (New South Wales) Act 1994 (NSW), any other existing public access to and enjoyment of waterways and its beds and banks or foreshores; coastal waters; beaches; stock routes; and areas that were public places at the end of 31 December 1993;
• the rights of employees, agents or instrumentalities of the State of New South Wales, of the Commonwealth, or of any local government authority. 

See Schedule Three for more information about the non-native title rights and interests.

Relationship between native title rights and interests and other rights and interests

• the other interests continue to have effect;
• the other interests co-exist with the native title rights and interests;
• the native title holders do not have the right to control access to or the use of the land or waters within the native title area by the holders of the other interests; and
• in the case of conflict, the exercise of non-native title rights and interests will prevail over the non-exclusive native title.

The relationship between native title and non-native title rights and interests is subject to the following:

The relationship between the native title rights and interests and the rights and interests of Coffs Harbour and District Local Aboriginal Land Council as the holder of an estate in fee simple in relation to Lot 1 in Deposited Plan 1238642:

• the Council's title in relation to the area continues to have effect;
• the non-extinguishment principle applies to the granting or vesting of the Council's title to that area and any prior interest in relation to the area;
• the native title rights and interests have no effect in relation to the Council's title to the area;
• the Council's title to the area, and any activity required or permitted to be done in accordance with that title, may be exercised and enjoyed in their entirety;
• the native title rights and interests may not be exercised on land or waters the subject of the Council's title to the area while that title exists; 
• if the Council's title to the area or its effect is wholly removed/ceases to operate, the native title rights and interests will have full effect; and
• if the Council's title to the area or its effects are removed/ceases to operate to an extent, the native title rights and interests have effect to that extent.

The transfer of Lot 1 in Deposited Plan 620967 to Coffs Harbour and District Local Aboriginal Land Council under the Aboriginal Land Agreement dated 6 November 2017 between the Minister administering the Crown Lands Act 1989 (NSW), the New South Wales Aboriginal Land Council, and Coffs Harbour and District Local Aboriginal Land Council is for an estate in fee simple, but is subject to the native title rights and interests existing in the land and waters immediately before the transfer.

See paragraphs 9-11 for a more detailed description of the relationship between native title rights and interests and other rights and interests. 

Sections 47A and 47B of the Native Title Act 1993 (Cth)

Section 47A of the Native Title Act 1993 (Cth) applies to Lot 1 in Deposited Plan 1238642. Section 47B applies to Lot 1 in Deposited Plan 620967. This means that prior extinguishment can be disregarded, recognising that the Gumbaynggirr People have native title rights and interests in the relevant area [35].

Prescribed body corporate

The Gumbaynggirr Wenonah Head Aboriginal Corporation (RNTBC, ICN 7376) is the prescribed body corporate. It performs the functions required under the Native Title Act 1993 (Cth) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) and holds the native title on trust for the native title holders described above.

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

Background

This application arose as a result of the land the subject of the present proceedings being excised from an earlier native title determination application (proceedings NSD 6104 of 1998) [6]. That earlier application was determined on 8 December 2017 by the Court with the consent of the parties in Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459 (Kelly).

In Kelly, the respondents accepted that there was a credible basis for a determination of non-exclusive native title in the presently claimed land and waters, such that the applicant was not required to provide any further connection material, if certain conditions were met [7].

The parties in the present case sought to honour the agreement in Kelly through seeking a determination of native title so that the applicant's native title would be recognised across the whole of the area as asserted in their original native title determination application [10].

Kelly has been described as '[a] unique Native Title determination recognising commercial rights with no qualifier for the first time in New South Wales' (Keen 2017). That determination was significant because it allowed Indigenous people to access natural resources and to take, use, share and exchange those resources for any purpose, including commercial (Keen 2017). Chairman of Native Title Services Corporation, Michael Bell, said that 'the recognition of commercial rights means that Native Title isn't just about symbolism' (Keen 2017).

Collier J said that the claim in Kelly was also unique because it was submitted alongside two ILUAs and one Aboriginal Land Agreement (Keen 2017). This determination resolved the oldest native title claim in NSW (NSW Department of Industry 2017, p. 1).

The unique approach taken to the Gumbaynggirr claim means that the public can continue to use the area for recreation, the native title holders have rights as set out in the consent determination and Indigenous Land Use Agreements, and Coffs Harbour and the District Local Aboriginal Land Council hold most of the land in the claim area freehold, subject to the recognised native title rights (NSW Department of Industry 2017, p. 2).

Details of Judgment

The parties reached an agreement as to the terms of a determination of native title to be made in relation to the native title area [47]. The signed agreement was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth) on 1 November 2019 [2]. The Court was satisfied that a determination of native title was within the power of the Court [47].

Native title exists in parts of the determination area.

Related Entries

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