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

Northern Rivers

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

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.

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.

Native title exists in parts of the determination area

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