| Yaegl People #1 v Attorney General of New South Wales [2015] FCA 647
Judge: Jagot J
Where made: Yamba, NSW
Yaegl People #1 Determination: NSD 6052 of 1998
Between:
SELENA BLAKENEY, JUDY BRECKENRIDGE, JOYCE CAROLINE CLAGUE, JACQUELINE FREEBURN, RON HERON, THELMA KAPEEN, VIVIENNE KING, EILEEN MCLEAY, DEIDRA ANN RANDALL, WILLIAM WALKER AND LILLIAN WILLIAMS ON BEHALF OF THE YAEGL PEOPLE #1 (applicants);
and
ATTORNEY GENERAL OF NEW SOUTH WALES, CLARENCE VALLEY COUNCIL, NTSCORP LIMITED, CLARENCE RIVER FISHERMEN’S CO-OP LTD, RICHARD CROFTON AND TELSTRA CORPORATION LIMITED (respondents).
Determination:
Native title exists in part of the determination area. It consists of non-exclusive native title rights.
Native title is held by the Yaegl People.
Non-exclusive native title rights and interests that exist over the determination area consist of the rights to:
- the right to enter, travel over and remain on a non-permanent basis on the determination area;
- the right to live on the land, to camp, to erect shelters, and to move about the land in the determination area but not extending to a right to permanently occupy or possess the land;
- the right to engage in cultural activities, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death in the determination area;
- the right to hunt in the determination area;
- the right to fish in the determination area;
- the right to take and use the water of the determination area for personal, domestic and communal purposes (including cultural purposes) but not extending to a right to control the use and flow of the water in any rivers or lakes which flow through or past or are situated within the land of two or more occupiers;
- the right to gather and use the natural resources in the determination area including food, medicinal plants, timber, stone, charcoal, ochre and resin as well as materials for fabricating tools and hunting implements and making artwork and musical instruments;
- the right to light fires on the determination area for domestic purposes, but not for the clearance of vegetation;
- the right to share, offer and exchange traditional resources derived from the determination area;
- the right to have access to, maintain and protect from physical harm, sites and places of importance in the determination area which are of significance to Yaegl People under their traditional laws and customs;
- the right to teach on the determination area the physical, cultural and spiritual attributes of places and areas of importance on or in the determination area; and
- the right to be accompanied on the determination area by persons who, though not native title holders, are:
(i) spouses, partners or parents of native title holders, together with their children and grandchildren;
(ii) people whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies; and
(iii) people requested by the native title holders to assist in, observe or record cultural activities, practices or ceremonies.
The native title rights and interests 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 traditional customs observed by the Yaegl People ; and
- the terms of any Indigenous Land Use Agreement which may at any time be registered by the National Native Title Tribunal in respect of any part of the determination area.
The native title rights and interests do not confer:
- possession, occupation, use or enjoyment to the exclusion of all others; and
- any right to control public access to, or public use of, the land or waters in the 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:
1. Reserves
(a) The rights of organisations or persons who have the care, control and management of the following reserves; and
(b) The rights of persons entitled to access and use the following reserves within the determination area for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights:
Reserve number- Reserve Purpose
56146 - Reserve from sale or lease
1011268 - For the public purpose of future public requirements
1011748 - For public purpose of access and public requirement, rural services, tourism purposes and environmental and heritage conservation
1003009 - Public recreation and coastal environmental protection
76879 - From Sale for Future Public Requirements
44940 - For Wharfage
90881 - For Public Hall
83556 - From sale or lease
2. Permissive Occupancies
The rights of the holders from time to time of the following Permissive Occupancies granted by the State of New South Wales:
Permissive Occupancy Licence Account Numbers
161391
167429
3216
483767
486883
3398
82924
11775
166654
3568
148010
14293
3214
166655
3604
10.6200
1966.26
1965.50
MS.08.10362
3475
153800
165675
147642
162943
147446
3. Fishing interests
The rights of the holders from time to time of licences and permits granted under the Fisheries Management Act 1994 (NSW).
4. Telstra Corporation Limited
The rights and interests of Telstra Corporation Limited (CAN 051 775 556):
(a) as the owner or operator of telecommunications facilities within the determination area;
(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporations Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
(i) to inspect land;
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and
(d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area.
5. Electricity supply interests
(a) The rights and interests of an electricity supply authority within the meaning of the Electricity (Consumer Safety) Act 2004 (NSW) to exercise functions, powers or rights in accordance with the laws of the State of New South Wales or of the Commonwealth and as owner and operator of electricity transmission facilities and associated infrastructure situated on the determination area including but not limited to the right to enter the determination area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with facilities and infrastructure.
6. Other interests
(a) Rights and interests, including leases, licences, permissive occupancies and permits granted by the Crown in right of the State of New South Wales or of the Commonwealth pursuant to statute or under regulations made pursuant to such legislation;
(b) Rights and interests held by reason of the force and operation of the laws of the State of New South Wales or of the Commonwealth;
(c) Rights and interests of members of the public arising under common law or statute;
(d) Any existing public access to and enjoyment of:
(i) waterways;
(ii) the bed and banks or foreshores of waterways;
(iii) coastal waters;
(iv) beaches;
(v) stock routes; and
(vi) areas that were public places at the end of 31 December 1993;
as at the date of the determination, pursuant to section 18 of the Native Title (New South Wales) Act 1994 (NSW); and
(e) The right to access the determination area by:
(i) an employee, agent or instrumentality of the State of New South Wales;
(ii) an employee, agent or instrumentality of the Commonwealth; and
(iii) an employee, agent or instrumentality of an local government authority,
as required in the performance of his, her or its statutory or common law duty.
The relationship between the native title rights and interests and the non-native title rights and interests is that:
- 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 by the holders of the other interests, acting in accordance with those other interests; and
- to the extent of any inconsistency, the other interests and any activity that is required or permitted by or under the exercise of a right conferred or held under the other interests, while they are in existence, prevail over but do not extinguish the native title rights and interests and any exercise of those native title rights and interests.
Provisions relevant to the Native Title rights:
- the Yaegl Traditional Owners Aboriginal Corporation RNTBC, 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 Yaegl People.
Yaegl People #2 Determination: NSD 168 of 2011
Between:
JUDY BRECKENRIDGE, RON HERON, NOELINE KAPEEN, VIVIENNE KING, FERLIN LEE LAURIE, KEN LAURIE, EILEEN MCLEAY, CLARENCE RANDALL, DEIDRE ANN RANDALL, WILLIAM WALKER AND LILLIAN WILLIAMS ON BEHALF OF THE YAEGL PEOPLE #2 (applicants);
and
ATTORNEY GENERAL OF NEW SOUTH WALES, THE COMMONWEALTH OF AUSTRALIA, CLARENCE VALLEY COUNCIL, NEW SOUTH WALES ABORIGINAL LAND COUNCIL, BIRRIGAN GARGLE LOCAL ABORIGINAL LAND COUNCIL, YAEGL LOCAL ABORIGINAL LAND COUNCIL, RICHARD CROFTON, TELSTRA CORPORATION LIMITED, WOOLI DEEP SEA TOURS AND WOOLI DEEP SEA CENTRE AND YAMBA SURF LIFESAVING CLUB (respondents).
Determination:
Native title exists in part of the determination area. It consists of non-exclusive native title rights.
Native title is held by the Yaegl People.
Non-exclusive native title rights and interests that exist over the determination area consist of the rights to:
- the right to enter, travel over and remain on a non-permanent basis on the determination area;
- the right to live on the land, to camp, to erect shelters, and to move about the land in the determination area but not extending to a right to permanently occupy or possess the land;
- the right to engage in cultural activities, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death in the Determination Area;
- the right to hunt in the determination area;
- the right to fish in the determination area;
- the right to take and use the water of the determination area for personal, domestic and communal purposes (including cultural purposes) but not extending to a right to control the use and flow of the water in any rivers or lakes which flow through or past or are situated within the land of two or more occupiers;
- the right to gather and use the natural resources in the determination area including food, medicinal plants, timber, stone, charcoal, ochre and resin as well as materials for fabricating tools and hunting implements and making artwork and musical instruments;
- the right to light fires on the determination area for domestic purposes, but not for the clearance of vegetation;
- the right to share, offer and exchange traditional resources derived from the determination area;
- the right to have access to, maintain and protect from physical harm, sites and places of importance in the determination area which are of significance to Yaegl People under their traditional laws and customs;
- the right to teach on the determination area the physical, cultural and spiritual attributes of places and areas of importance on or in the determination area; and
- the right to be accompanied on the determination area by persons who, though not native title holders, are:
(i) spouses, partners or parents of native title holders, together with their children and grandchildren;
(ii) people whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies; and
(iii) people requested by the native title holders to assist in, observe or record cultural activities, practices or ceremonies.
The native title rights and interests 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 traditional customs observed by the Yaegl People; and
- the terms of any Indigenous Land Use Agreement which may at any time be registered by the National Native Title Tribunal in respect of any part of the determination area.
The native title rights and interests do not confer:
- possession, occupation, use or enjoyment to the exclusion of all others; and
- any right to control public access to, or public use of, the land or waters in the 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:
1. Aboriginal Land Council interests
(a) The rights and interests of Birrigan Gargle Local Aboriginal Land Council and Yaegl Local Aboriginal Land Council (as the case may be) as the holder of a freehold title over the following land and waters in the determination area:
Local Aboriginal Land Council: Birrigan Gargle Local Aboriginal Land Council
Areas over which freehold held:
Lot 96 DP822831, Parish of Nanegai (ID3833)
Lot 165 DP751395, Parish of Yamba (ID10141)
Lot 2 DP565241, Parish of Yamba (ID 12352)
Lot 199 DP729133, Parish of Yamba (ID 10479)
Lot 3 DP565241, Parish of Yamba (ID12238)
Lot 275 DP1054783, Parish of Yamba (ID12508)
Lot 277 DP1134745, Parish of Yamba (ID13178)
Lot 278 DP 1134758, Parish of Yamba (ID13170)
Lot 118 DP 751395, Parish of Yamba (ID10094)
Lot 121 DP 751395, Parish of Yamba (ID 10133)
Local Aboriginal Land Council: Yaegl Local Aboriginal Land Council
Areas over which freehold held:
199/751373, Parish of Harwood (ID2430)
2/70/758604 , Parish of Lawrence(ID2988)
1/70/758604, Parish of Lawrence (ID 3287)
3/70/758604, Parish of Lawrence (ID 3309)
298/822835, Parish of Lawrence (ID 3415)
426/727422, Parish of Taloumbi (ID5403)
440/47654 , Parish of Taloumbi (ID7000)
441/48751, Parish of Taloumbi (ID7168)
438/824497, Parish of Taloumbi (ID7436)
196/48753, Parish of Tyndale (ID7849)
221/727421, Parish of Woombah (ID 9832)
222/824485 , Parish of Woombah(ID 9921)
2/8/759119, Parish of Woombah (ID9926)
3/8/759119, Parish of Woombah (ID9955)
4/8/759119, Parish of Woombah (ID9970)
(b) The rights and interests of New South Wales Aboriginal Land Council, Birrigan Gargle Local Aboriginal Land Council and Yaegl Local Aboriginal Land Council (as the case may be) pursuant to undetermined Aboriginal land claims made under section 36 of the Aboriginal Land Rights Act 1983 (NSW) in respect of certain lands within the determination area, including the right to have each such claim determined according to law and, subject only to a determination that the land is claimable Crown land as defined in s 36(1) of that Act, the right to the transfer of an estate in fee-simple pursuant to that Act.
2. Reserves
(a) The rights of State, Local Government and other organisations or persons who have the care, control and management of any reserves within the determination area.
(b) The rights of persons entitled to access and use any reserves within the determination area for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights.
3. Mining and petroleum interests
(a) The rights of the holders of any mining interests.
(b) The rights of the holders of any petroleum interests.
4. Water interests
(a) The rights of the holders from time to time of the following licences granted under the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW).
(b) The rights of the holders from time to time of any Permissive Occupancies granted by the State of New South Wales.
5. Fishing Interests
The rights of the holders from time to time of leases, licences and permits granted or issued under the Fisheries Management Act 1994 (NSW) and associated regulations.
6. National Park Interests
The rights of the holders from time to time of leases, licences and permits granted or issued under the National Parks and Wildlife Act 1974 (NSW) and associated Regulations.
7. Telstra Corporation Limited
The rights and interests of Telstra Corporation Limited (ACN 051 775 556):
(a) as the owner or operator of telecommunications facilities within the Determination Area;
(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporations Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
(i) to inspect land;
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities;
(c) for its employees, agents or contractors to access its telecommunications facilities in, and in the vicinity of, the determination area in performance of their duties; and
(d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the determination area.
Electricity supply interests
(a) The rights and interests of an electricity supply authority within the meaning of the Electricity (Consumer Safety) Act 2004 (NSW) to exercise functions, powers or rights in accordance with the laws of the State of New South Wales or of the Commonwealth and as owner and operator of electricity transmission facilities and associated infrastructure situated on the determination area including but not limited to the right to enter the determination area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with facilities and infrastructure.
8. Other interests
(a) Rights and interests, including leases, licences and permits granted by the Crown in right of the State of New South Wales or of the Commonwealth pursuant to statute or under regulations made pursuant to such legislation.
(b) Rights and interests held by reason of the force and operation of the laws of the State of New South Wales or of the Commonwealth.
(c) Rights and interests of members of the public arising under common law.
(d) So far as is confirmed pursuant to section 18 of the Native Title (New South Wales) Act 1994 (NSW) as at the date of the determination, any existing public access to and enjoyment of:
(i) waterways;
(ii) the bed and banks or foreshores of waterways;
(iii) stock routes; and
(iv) areas that were public places at the end of 31 December 1993.
(e) The right to access the Determination Area by:
(i) an employee, agent or instrumentality of the State of New South Wales;
(ii) an employee, agent or instrumentality of the Commonwealth; and
(iii) an employee, agent or instrumentality of any local government authority,
as required in the performance of his, her or its statutory or common law duty.
The relationship between the native title rights and interests and the non-native title rights and interests is that:
- 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 by the holders of the Other Interests, acting in accordance with those Other Interests; and
- to the extent of any inconsistency, the other interests and any activity that is required or permitted by or under the exercise of a right conferred or held under the Other Interests, while they are in existence, prevail over but do not extinguish the native title rights and interests and any exercise of those native title rights and interests.
In relation to the area of land and waters described in Schedule Three (where section 47A of the Native Title Act applies and prior extinguishment is disregarded), the relationship between the native title rights and interests in the determination area and the other interests is that:
(a) the other interests continue to have effect;
(b) the non-extinguishment principle in section 238 of the Native Title Act applies to the grant or vesting of the other interests or any other prior interest in relation to the area in accordance with section 47A(3)(b) of the Native Title Act; and
(c) the native title rights and interests continue in their entirety but have no effect in relation to the other interests, and any activity that is required or permitted by or under and done in accordance with the other interests prevails over the native title rights and interests and any exercise of the native title rights and interests, but does not extinguish them except in accordance with law.
Provisions relevant to the Native Title rights:
- the Yaegl Traditional Owners Aboriginal Corporation RNTBC, 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 Yaegl People.
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Yaegl People #1 v Attorney General of New South Wales [2015] FCA 647 - Consent Determination Extract - (