Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales [2019] FCA 527

Northern Rivers

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

Between: Dulcie Nicholls, Norman Graham, Stanley Kay, Judith Davies, Brian Kelly and Yvonne Stewart on behalf of the Bundjalung People of Byron Bay (Applicant) and Attorney General of NSW, Commonwealth of Australia and Byron Shire 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 Bundjalung People of Byron who:

• are the biological descendants of ancestor Bobby Bray, also known as King Bobby of Bumberbin; or
• are persons adopted into those descendants' families in accordance with Byron Bay Bundjalung law and customs, identify themselves as a Bundjalung person of Byron By, and are recognised as such by Bundjalung People of Byron Bay in accordance with their law and custom.

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 rights to:

• enter, travel over and remain on the land or waters;
• take and use the natural resources for personal, domestic and communal purposes (including cultural purposes). However, this right does not extend to a right to control the use and flow of the water in any rivers or lakes;
• light fires for personal, domestic and communal purposes (including cultural purposes), but not for the clearance of vegetation;
• engage in cultural activities, conduct ceremonies, hold meetings and participate in cultural practices relating to birth and death including burials where permitted by the laws of New South Wales on the land or waters;
• have access to, maintain and protect from physical harm sites and places of importance which are of significance to the Bundjalung People of Byron Bay under their traditional laws and customs;
• teach the physical, cultural and spiritual attributes of places and areas of importance;
• hunt and fish for personal, domestic and communal purposes (including cultural purposes);
• be accompanied by people who are not native title holders, but are spouses, partners or parents of native title holders (together with their children and grandchildren); or people whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies; or people requested by native title holders to assist in, observe or record cultural activities, practices or ceremonies. 

• the rights and interests of New South Wales Aboriginal Land Council, Jali Local Aboriginal Land Council, and Tweed Byron Local Aboriginal Land Council respect of certain lands within the Native Title area, including the right to have undetermined Aboriginal land claims made under s 36 of the Aboriginal Land Rights Act 1983 (NSW);
• the rights of State, Local Government and other organisations or persons who have the care, control and management of any reserves within the Native Title area, subject to State and Commonwealth laws, and the rights of people entitled to access and use those reserves for the purposes for which they are reserved;
• the holders of any mining or petroleum interests;
• the rights of any holder of any licenses or permissive occupancies granted under the Water Act 1919 (NSW) and the Water Management Act 2000 (NSW);
• fishing interests granted under the Fisheries Management Act 1994 (NSW);
• rights of the Department of Primary Industry - Fisheries, under the Fisheries Management Act 1994 (NSW) and other rights and interests subject to State and Commonwealth Law;
• rights under the National Parks and Wildlife Act 1974 (NSW);
• rights emerging from the grant of leases, licenses and permits under the Crown Land Management Act 2016 (NSW);
• the rights of an electricity supply authority within the meaning of the Gas and Electricity (Consumer Safety) Act 2004 (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 and interests of Byron Shire Council.
• the rights and interest of The Australian Maritime Safety Authority as the operator and manager of the Cape Byron Lighthouse
• the rights and interest of the Bureau of Meteorology as the operator and manager of the weather station located at Cape Byron
• general rights and interests granted or held by operation of State or Commonwealth Laws
• public rights to fish and navigate, and access and enjoyment of waterways and other public places.

See Schedule 5 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 Bundjalung People of Byron Bay Aboriginal Corporation (Arakwal) 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 Bundjalung People of Byron Bay.

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

Background

This application has had a lengthy history, being first filed in the Federal Court in December 2001, and amended in 2003, 2010, 2011 and 2019 [10].

However, the Arakwal Aboriginal Corporation was registered as early as 1994 to hold any benefits that would be recognised under the Native Title Act 1993 (Cth) (the NTA), with lengthy negotiations first initiated by Arakwal elders Linder Vidler, Dulcie Nicholls, Lorna Kelly and Yvonne Graham in 1993.

Following almost 30 years of negotiations and 20 years of legal proceedings, this claim is only the second time in NSW that native title sea rights have been recognised, and is the first positive determination in an area of NSW with a dense population.

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 Robertson noted that his power to make orders by consent for a determination occurred pursuant to ss 87 and s 94A of the NTA.

In assessing the application, Justice Robertson emphasised that despite the parties agreement it was still necessary to show that there was a recognisable group or society that presently recognised and observes traditional laws and customs in the determination area [18].

The parties argued that the NTA did not require the Court to engage in its own enquiries to determine whether such issues were established by evidence, but only whether there the agreement between the parties had been freely entered into on an informed basis. [20].

However, noting principles and case law in King on behalf of the Eringa Native Title Claim Group v South Australia [2011] FCA 1386; 285 ALR 454, Justice Robertson emphasised the following points regarding the Courts' own inquiries: [22]

1. the position is different from ordinary adversarial litigation because the determination of a native title also affects the rights of non-parties;
2. for that reason the Court places reliance on the position taken by the relevant State respondent because it has an obligation to act in the public interest, and has the expertise and procedures for assessing claims;
3. evidence in support of the claim may be considered to verify that the State is acting rationally and in good faith; and
4. it is proper for a State respondent to accept the existence of native title on the basis of less stringent analysis than would otherwise be applied in a contested hearing.

Considering the Applicant's evidence, including lay witness affidavits and expert anthropological reports, the Court found the agreement had been freely entered into on an informed basis, satisfied the requirements in s225 of the NTA, and so granted the orders agreed by the parties.

Native Title exists in parts of the determination area.

Related Entries

Documents

Glossary