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Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851 | | Date: | 15 August 2014 | | | Sub Category: | Consent Determination (Native Title Act) | | Place: | Gumma Peninsula and Gumma Islands | | State/Country: | New South Wales, Australia | | The determination area is outlined in Schedule 1 of the judgment. It is situated on the north-mid coast of New South Wales. The claim extends over a six-square-kilometre piece of coastal land within the Gaagal Wanggaan National Park, just south of the town of Nambucca Heads. | | | | Legal Status: | Registered on the National Native Title Register. | | | Legal Reference: | Tribunal file no.: NCD2014/001; Federal court file no.: NSD6054/1998. | | | Subject Matter: | Native Title | | URL: | http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/851.html | | | Summary Information: | | | Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851
Between:
BARRY PHYBALL, PETER GARY WILLIAMS, LARRY KELLY, COLIN JARRETT, MICHELE DONOVAN, BRIDGET JARRETT, RICHARD PACEY, TREVOR BALLANGARRY, ADEN RIDGEWAY AND CONWAY EDWARDS ON BEHALF OF THE GUMBAYNGGIRR PEOPLE (applicant);
and
ATTORNEY GENERAL OF NEW SOUTH WALES and UNKYA LOCAL ABORIGINAL LAND COUNCIL (respondents).
Judge: Jagot J
Where made: Nambucca Heads, NSW
Determination:
Native title exists in the entire determination area in relation to the land and waters described in Schedule A and depicted in the map in Schedule B. It consists of non-exclusive native title rights.
Native title is held by the Gumbaynggirr People.
Non-exclusive native title rights and interests that exist over the determination area consist of the rights to:
- the right to have access to and camp on the consent determination area;
- the right to take and use waters on or in the consent determination area;
- the right to hunt and gather natural resources of the consent determination area for personal, domestic and non-commercial communal use;
- the right to take fish in the temporary waters occurring above the mean high water mark in the consent determination area;
- the right to do the following activities on the land:
(i) conduct ceremonies;
(ii) teach the physical, cultural and spiritual attributes of places and areas of importance on or in the land and waters; and
(iii) to have access to, maintain and protect from physical harm, sites in the Consent Determination Area which are of significance to Gumbaynggirr People under their traditional laws and customs.
The native title rights and interests are subject to and exercisable in accordance with:
- the laws of the State of New South Wales and the Commonwealth including the common law; and
- the traditional laws acknowledged and traditional customs observed by the Gumbaynggirr People.
General limitations
- the native title rights and interests are to be exercised for personal, domestic and non-commercial communal purposes;
- the native title rights and interests do not confer possession, occupation, use or enjoyment to the exclusion of all others;
- the native title rights and interests do not confer any right to control public access or public use of the land and waters of the consent determination area.
There are no native title rights in or in relation to:
- minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2010 (NSW); and
- Petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW) and the Petroleum (Submerged Lands) Act 1982 (NSW).
Non-native title rights and interests that exist within the determination area:
- the rights and interests of an energy services corporation within the meaning of the Energy Services Corporations Act 1995 (NSW) to exercise functions, powers or rights in accordance with the laws of the State of New South Wales or Commonwealth and as owner and operator of electricity transmission facilities and associated infrastructure situated on the Consent Determination Area including but not limited to the right to enter the Consent Determination Area in order to access, use, install, maintain, repair, replace, upgrade or otherwise deal with facilities and infrastructure;
- the rights and interests of Essential Energy as the holder of a registered easement 20 metres wide shown on transfer AF413714D;
- the rights and interests of the Nambucca Shire Council under its local government jurisdiction and as an entity exercising statutory powers in respect of the land and waters in its local government area;
- the rights and interests granted by the Commonwealth pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation;
- the rights and interests of the Nambucca Heads Local Aboriginal Land Council and the Unkya Local Aboriginal Land Council in the land and waters within the Consent Determination Area, as the holders of an estate in fee simple pursuant to the Aboriginal Land Rights Act 1983 (NSW) and the National Parks and Wildlife Act 1974 (NSW);
- the rights and interests of the Nambucca Heads Local Aboriginal Land Council and the Unkya Local Aboriginal Land Council (as lessors) and the Minister administering the National Parks and Wildlife Act 1974 (NSW) (as lessee), under the Gaagal Wanggaan (South Beach) National Park Lease established pursuant to Part 4A of the National Parks and Wildlife Act 1974 (NSW) on 22 April 2010;
- the rights, interests, powers, authorities, duties and functions of the Director General and the National Parks and Wildlife Service under the National Parks and Wildlife Act 1974 (NSW), in relation to the management of the Gaagal Wanggaan (South Beach) National Park;
- the rights and interests of the Board of Management established pursuant to the National Parks and Wildlife Act 1974 (NSW) relating to the management of the Gaagal Wanggaan (South Beach) National Park, under the National Parks and Wildlife Act 1974 (NSW) and the Gaagal Wanggaan (South Beach) National Park Lease between the Nambucca Heads Local Aboriginal Land Council and the Unkya Local Aboriginal Land Council (as lessor) and the Minister administering the National Parks and Wildlife Act 1974 (NSW) (as lessee) dated 22 April 2010;
- the rights and interests of members of the public arising under the common law including but not limited to the public right to fish;
- so far as confirmed pursuant to section 16 and 18 of the Native Title (New South Wales) Act 1994, any other existing public access to and enjoyment of
(i) waterways;
(ii) the beds and banks or foreshores of waterways;
(iii) coastal waters;
(iv) beaches;
(v) stock routes;
(vi) areas that were public places at the end of 31 December 1993;
- any other rights and interests of the Crown in right of the State of New South Wales;
- any other rights and interests granted or recognised by the State of New South Wales pursuant to statute or otherwise in the exercise of its executive power and under any regulations made pursuant to such legislation;
- any other right to access land by an employee or agent or instrumentality of the State, Commonwealth or other statutory authority as required in the performance of his or her statutory or common law duties; and
- any other:
(i) legal or equitable estate or interest in the land or waters of the consent determination area; or
(ii) right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(a) the land or waters of the consent determination area; or
(b) an estate or interest in the land or waters of the consent determination area.
The relationship between the native title rights and interests and the non-native title rights and interests is that:
- to the extent that the native title rights and interests and the other rights and interests are not inconsistent, both the native title rights and interests and the other rights and interests continue to have effect and to be exercisable by the respective holders of those rights and interests and the native title rights and interests are not extinguished or impaired;
- the other rights and interests referred to in paragraphs 15(e) to (h) are, in accordance with the Aboriginal Land Rights Act 1983 (NSW) and the National Parks and Wildlife Act 1974 (NSW), subject to the native title rights and interests herein recognised and do not extinguish or impair the native title rights and interests; and
- where any other rights or interests not being of the kind referred to above and any activity done in accordance with or incidental to the exercise of any such right or interest is inconsistent with the existence, exercise or enjoyment of the native title rights and interests, then the other right or interest and any exercise of the other right or interest prevails over the native title rights and interests but does not extinguish the native title rights and interests.
Provisions relevant to the native title rights:
- the Wanggaan (Southern) Gumbaynggirr Nation Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate;
- native title is held in trust for the Gumbaynggirr People.
| | Detailed Information: | | | Background
The native title application was first made on 16 December 1996, and has since been amended to reflect the final decision of the Gumbaynggirr People about their claim. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Gumbaynggirr People as the holders of native title rights and interests over their country.
Despite the fact that there were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the Gumbaynggirr claim, the application took 17 years to resolve, with only one applicant alive at the time of the final determination.
The successful native title claim has provided the Gumbaynggirr People with formal recognition of approximately six square kilometres of land.
Details of Judgement
Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Gumbaynggirr People in relation to part of the land and waters covered by the Gumbaynggirr claim. The signed document was then filed in the Federal Court pursuant to s 87 of the Native Title Act 1993 (Cth).
The court was satisfied that a determination of native title was within the power of the court. | |
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Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851 - Schedule B Map of the Determination Area and Amended Application Area - ( 
Phyball on behalf of the Gumbaynggirr People v Attorney-General of New South Wales [2014] FCA 851 - Consent Determination Extract - (