Gumbaynggirr (Boney) Settlement Indigenous Land Use Agreement (ILUA)

Wenonah Head, mid-north coast NSW

Registered with the National Native Title Tribunal on the Register of Indigenous Land Use Agreements on 26 July 2018. This is an authorised area agreement under the Native Title Act 1993 (Cth).

The Gumbaynggirr (Boney) Settlement Indigenous Land Use Agreement (ILUA) was agreed, under the provisions of the Native Title Act 1993 (Cth), between:

• Christine Witt, Marion Witt, Frances Witt, Laurie (Larry) Kelly and Richard Pacey as the registered native title claimant for and on behalf of the Gumbaynggirr People, and the Attorney General of New South Wales;
• the CEO of the Office of Environment and Heritage;
• the Minister administering the National Parks and Wildlife Act 1974 (NSW);
• the Gumbaynggirr Wenonah Head Aboriginal Corporation; and
• the Minister administering the Crown Lands Act 1989 (NSW).

The purpose of the ILUA is to provide the Gumbaynggirr People's consent to, among other things, the extinguishment of native title over part of the ILUA area and its grant in freehold title to the Gumbaynggirr Wenoah Head Aboriginal Corporation.

The Native Title Representative Body for this area is the Gumbaynggirr Wenonah Head Aboriginal Corporation RNTBC.

Background to the Agreement

This ILUA, together with the Gumbaynggirr Wenonah Head ILUA and an Aboriginal Land Agreement, were submitted alongside the claim in Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459 (Keen 2017).

Collier J understood Kelly to be the first such agreement recognising commercial rights in NSW, and she congratulated the parties in their innovative use of the Native Title Act 1993 (Cth) (Keen 2017).

The two ILUAs and the Aboriginal Land Agreement were also submitted alongside the further claim in Pacey on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1916, which was over an area that had been excised from Kelly.

The parties negotiated the two ILUAs and the Aboriginal Land Agreement to address uncertainties that were anticipated to arise for all parties and the public in relation to the exercise of native title and the co-existence of non-native title rights and interests (Kelly at [59]).

Details of the Agreement

Commencement and Termination

The agreement was registered with the National Native Title Tribunal (NNTT) on 26 July 2018. Clauses 1, 2, 3, 4, 6, 19, 20, 21, 23, 25, 26, 27, 28, 29, 30 and 31 commenced on 6 November 2017, and the remainder of the Agreement commenced on 26 July 2018. The ILUA does not have a specified end date.

Native Title Provisions

Right to negotiate

The right to negotiate under Subdivision P, Division 3, Part 2 of the Native Title Act 1993 (Cth) applies.

Extinguishment

The parties agree to surrender and extinguish the native title in relation to ID Area 5A (east) before the Minister transfers title over that area to the RNTBC in accordance with clause 5 of Schedule E. A written description and map of the area is provided in Annexure B to Schedule E.

Future act provisions

The parties agree to the doing of certain acts, to the extent that they are future acts, including:

• the subdivision of part of the area;
• the reservation of the Recreation Reserve;
• the creation of the easements under Division 5 of Part 4 of the Crown Lands Act 1989 (NSW);
• the grant of a licence to the Urunga Amateur Anglers Club over the licensed area within the Recreation Reserve for the use of fishing;
• surrender all native title in relation to ID Area 5A (east) in accordance with clause 5 of Schedule E;
• transfer of the freehold lands to the RNTBC under s 34 of the Crown Lands Act 1989 (NSW);
• access rights for the Coffs Harbour Local Aboriginal Land Council in accordance with 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;
• transfer of Coffs Harbour Local Aboriginal Land Council land to the Coffs Harbour Local Aboriginal Land Council in accordance with the Aboriginal Land Agreement; and
• future acts that are in a class covered by Schedule D, including emergency acts, acts of remediation, acts under a reservation, and low level future acts.

See clauses 8-11 and Schedule D for more information about future acts.

The non-exclusive native title rights and interests recognised in Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459 and Pacey on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1916 are subject to and exercisable in accordance with the terms and conditions of this ILUA.

Native Title in the Agreement Area

The ILUA area is within the area of the native title determinations Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459 (FCA file no.: NSD6104/1998; NNTT file no.: NCD2017/004) and Pacey on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2019] FCA 1916 (FCA file no.: NSD1312/2018; NNTT file no.: NCD2019/003).

Related Entries

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