Kelly on behalf of the Gumbaynggirr People v Attorney General of New South Wales [2017] FCA 1459

Wenonah Head, mid-north coast NSW

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

Between: Laurie (Larry) Kelly, Richard Pacey, Christine Witt, Marion Witt and Frances Witt on behalf of the Gumbaynggirr People (Applicant) and Attorney General of New South Wales, Bellingen Shire Council and Coffs Harbour and District Local Aboriginal Land Council (and others named in the Schedule) (Respondents)

Judge: Collier J

Determination

Native title exists in the entire 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:

• biological descendants of the persons listed in paragraph 4(a) of the determination;
• 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 Gumbaynggirr 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 all of the determination area

These rights 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; and
• 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 referred to in paragraphs 1, 3 and 4 of Schedule Four. 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 8 December 2017, 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 (CH&D LALC):

• to the transfer of an estate in fee simple of the areas of land described in paragraph 1(a) of Schedule Five pursuant to 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 the CH&D LALC;
• pursuant to the Gumbaynggirr Wenonah Head ILUA (NNTT file no.: NI2018/005).

Fishing rights interests:

• 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 Department of Primary Industry - Fisheries;
• the rights of the Department of Primary Industry - Fisheries and its employees or agents under the Fisheries Management Act 1994 (NSW).

National Parks interests:

• the rights of holders of leases, licences and permits under the National Parks and Wildlife Act 1974 (NSW);
• the rights of the NSW Office of Environment and Heritage, and its employees or agents under the National Parks and Wildlife Act 1974 (NSW); 
• the rights of the NSW Office of Environment and Heritage, and its employees or agents, who have the care, control and management of any reserves.

Crown Lands Interests:

• the rights of the holders of leases, licences and permits under the Crown Lands Act 1989 (NSW);
• other rights and interests under the care, management and control of the New South Wales Department of Industry - Lands;
• the rights of the New South Wales Department of Industry - Lands, and its employees or agents under the Crown Lands Act 1989 (NSW).

Local government interests:

• 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;
• 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 Five for more information about the non-native title rights and interests.

Relationship between native title 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 transfer of lands to CH&D LALC is for an estate in fee simple, subject to any native title rights and interests existing in the land immediately before the transfers.

See paragraphs 10 and 11 of the determination for a more detailed description of the relationship between native title rights and interests and other rights and interests.

S 47B of the Native Title Act 1993 (Cth)

Section 47B of the Native Title Act 1993 (Cth) applies to those areas of land and waters described in Part 2 of Schedule One. This means that prior extinguishment can be disregarded, recognising that the Gumbaynggirr People have native title rights and interests in the relevant area.

Extinguishment

To the extent they fall within the external boundary of the application, the extinguished area includes:

• any land or waters upon which there is or has been constructed or established public works which were constructed or established prior to 23 December 1996, or were commenced to be constructed or established on or before that date;
• any land or waters upon which a public road is or was commenced to be constructed or established, on or before 23 December 1996;
• any roads established under statute or common law on or before 23 December 1996; and
• the land or waters set out in paragraph (d) in the description of the extinguished area in Schedule Two and depicted on the map in Schedule Two.

See Schedule Two for more information about the extinguished area.

Prescribed body corporate

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

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

Background

Since its commencement on 3 June 1998, this proceeding had been was amended in 1999, 2001, 2016 and 2017 [4]. By the time of the judgment of this case, the proceedings had been on foot for 19 years and six months which, as Collier J notes, 'is an astonishing length of time' [4]. The application was determined on 8 December 2017 with the consent of the parties. This determination resolved the oldest native title claim in NSW (NSW Department of Industry 2017, p. 1).

The case 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). It is significant because it allows 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).

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 CH&D LALC 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 determination area. The signed agreement was then filed in the Federal Court on 6 November 2017 pursuant to s 87 of the Native Title Act 1993 (Cth) [6]. Collier J was satisfied that a determination of native title was within the power of the Court [61].

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