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Bandjalang People No 3 v Attorney-General of New South Wales [2021] FCA 386

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 30 April 2021
Sub Category:Consent Determination (Native Title Act)
Place:

Northern Rivers

State/Country:New South Wales, Australia
The determination area covers 52 parcels of land in the the north coast region of New South Wales, located in and around Evans Head, and inland towards Wyan. For a detailed description of the area and maps see Schedule 1 of the determination, attached below under documents. The area is within the jurisdiction of the Richmond Valley Council and Clarence Valley Council.
Legal Status:

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

Legal Reference: Federal Court file no.: NSD426/2016; National Native Title Tribunal file no.: NCD2021/001
Alternative Names:
  • Bandjalang People No 3
  • Subject Matter:Native Title
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2021/386.html?context=1;query=Bandjalang%20People%20No%203%20v%20Attorney-General%20of%20New%20South%20Wales%20;mask_path=au/cases/cth/FCA
    Summary Information:

    Between: Bandjalang People (Applicant) and Attorney-General of New South Wales (Respondents)

    Judge: Rares J

    Determination

    Native title exists in parts of the determination area

    Native title holders

    Native Title is held by the Bandjalang People, who are the biological descendants of the people named below; and any people, and their biological descendants, adopted or incorporated into the families of those persons and who identify as and are accepted as Bandjalang people in accordance with Bandjalang traditional laws and customs.

    • King Harry
    • Jack Wilson
    • Susannah mother of Frank Jock Jnr
    • Michael 'Muldoon' Wilson
    • George James
    • Eliza Breckenridge
    • Jack Breckenridge
    • Frank Jock Jnr
    • Ada Jock
    • Gibson Robinson
    • Grace Bond

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

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

    • the right to hunt, fish, and gather traditional natural resources for non-commercial personal, domestic and communal use;
    • the right to take and use waters;
    • the right to access and camp;
    • the right to conduct ceremonies, teach physical cultural, and spiritual attributes of places and areas of importance; and
    • have access to, maintain and protect from physical harm sites of significance under traditional laws and customs.

    Other rights and interests in the determination area include:

    • the rights of the Bogal Local Aboriginal Land Council, New South Wales Aboriginal Land Council, Jali Local Aboriginal Land Council and Ngulingah Local Aboriginal Land Council to use, manage, control, hold or dispose of the land;
    • the rights and interests of Yaegl Local Aboriginal Land Council as the holder of freehold title over a particular lot.
    • the rights of an electricity supply authority within the meaning of the Gas and Electricity (Consumer Safety) Act 2017 (NSW) and the Energy Services Corporations Act 1995 (NSW);
    • the rights of an electricity network operator within the meaning of the Electricity Supply Act 1995 (NSW); and
    • the rights of the Richmond Valley Council and Clarence Valley Council to exercise their statutory powers with respect to the land and waters.

    See Schedule 3 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 Bandjalang 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 Bandjalang People

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

    Detailed Information:

    Background

    The Bandjalang People's native title was first recognised after 17 years of negotiation in Bandjalang People No 1 and No 2 v Attorney-General of New South Wales [2013] FCA 1278. This was the third successful native title claim in NSW, and protects many significant sites such as the Goanna Headlands, and 20 significant archeological sites contained within.

    In 2016 the Bandjalang People made another application for a determination of native title, and an additional one in 2019. These two applications were dealt with together by the Court in this determination [D]. The determination area here consists of 52 parcels of land, including a culturally significant site at Bora Ridge, located within the external boundary of the claim area determined in the Bandjalang People's 2013 recognition of native title. The 52 parcels were held by different Aboriginal Land Councils under the Aboriginal Land Rights Act 1983 (NSW) (the ALRA). However, because there are differences between the rights under the ALRA, and the rights of native title holders under the Native Title Act 1993 (Cth), difficult issues arose during the negotiations for the 2013 determination. As a result, those parcels were not included in that determination.


    Details of Judgment

    The parties reached agreement as to the terms of a determination of native title agreeing that native title exists in relation to part of the determination area whilst it had been extinguished in relation to the rest.

    Justice Rares noted that his power to make orders by consent for a determination occurred pursuant to ss 87 and 94A of the Native Title Act 1993 (Cth), and approved the Applicant's nomination of the Bandjalang Aboriginal Corporation to hold the determined native title in trust for the Bandjalang People.

    While the determination resulted from an agreement between the parties, Justice Rares emphasised that the Court must still be satisfied that there is sufficient evidence to ensure that the making of any determination would be appropriate. While it is not necessary for the parties to tender evidence as if they were contesting a dispute, the Court still needs to be satisfied that a proper basis for the determination exists because "the agreement is rooted in reality" [18].

    In this instance, Justice Rares noted that there was sufficient evidence and considered it appropriate to make the consent orders sought by the parties.

    Outcomes:

    Native title exists in parts of the determination area


    Related Entries

    Agreement
  • Bandjalang People No 1 and No 2 v Attorney General of New South Wales [2013] FCA 1278
  • Organisation
  • National Native Title Tribunal
  • Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC
  • New South Wales Aboriginal Land Council - Respondent
  • Jali Local Aboriginal Land Council - Respondent
  • Yaegl Local Aboriginal Land Council - Respondent
  • TransGrid - Respondent
  • Ngulingah Local Aboriginal Land Council - Respondent
  • Essential Energy - Respondent
  • Richmond Valley Council
  • Clarence Valley Council
  • Bogal Aboriginal Land Council - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)
  • Petroleum (Onshore) Act 1991 (NSW)
  • Petroleum (Submerged Lands) Act 1982 (NSW)
  • Mining Act 1992 (NSW)
  • Aboriginal Land Rights Act 1983 (NSW)
  • People
  • Attorney General of New South Wales - Respondent
  • Veronica Wilson & others - Native Title Applicant
  • Bandjalang People #3 - Native Title Applicant
  • Bandjalang People - Native Title Claimant

  • Documents

    Document
    Extract from the Native Title Register for NCD2021/001 as at 23/02/2022 (Bandjalang People No 3) - ( PDF | PDF | PDF | PDF)

    Glossary

    Native Title (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Registers | Aboriginal and Torres Strait Islander (Australia) | Applicant | Respondent | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Aboriginal Corporation (Australia) | Native Title Applicants | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Registered Native Title Body Corporate (RNTBC) (Native Title Act) (Australia)

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