Bandjalang People No 1 and No 2 v Attorney General of New South Wales  FCA 1278
|Binomial Name: ||Federal Court of Australia|
|Date: ||2 December 2013|
|Sub Category:||Consent Determination (Native Title Act)|
|State/Country:||New South Wales, Australia|
|The Native Title covers approximately 2,750 square kilometres from Evans Head, north-west to Casino, inland to Bushby Flats and south to Junction Hill near Grafton. The determination area includes sections of the Clarence Valley Council and the Richmond Valley Council.|
|Legal Status: ||Registered on the National Native Title Register of native title determinations.|
|Legal Reference: ||Tribunal file no. NCD2013/002
Federal Court file no(s) NSD6107/1998|
|Alternative Names:||Bandjalang People No. 1
Bandjalang People No. 2
|Subject Matter:||Access | Future Act | Land Use | Native Title | Recognition of Native Title or Traditional Ownership|
|Summary Information: |
Anthony Edward Wilson and Douglas Steven Wilson on behalf of the Bandjalang People No 1 & No 2 (APPLICANT)
THE NSW ATTORNEY GENERAL AS THE STATE MINISTER FOR NEW SOUTH WALES AND OTHERS (Respondent)
Judge: Jagot J
Where made:Evans Head
Native title exists in part of the determination area. The determination established non-exclusive native title rights.
Native title is held by Bandjalang Aboriginal Corporation Prescribed Body Corporate on trust for the Bandjalang People.
Non-exclusive native title rights and interests that exist over land in the determination area include:
- the right to hunt, gather and share traditional natural resources resourced from the area for personal and domestic purposes;
- the right to take and use water from the area;
- the right to access, including the right to camp;
- the right to conduct cultural and spiritual activities and ceremonies on the area; and
-the right to maintain places of importance and areas of significance to the Bandjalang people and to protect those places and areas from harm.
Non-exclusive water rights:
In relation to the native title rights and interests in water within the determination area, the native title holders have the right to hunt, fish, gather, collect and use the Water for personal, domestic and non-commercial communal purposes.
Non-native title rights and interests that exist within the determination area
- The rights and interests of Telstra Corporation Limited as the owner or operator of telecommunications facilities within the area;
- The rights and interests of the Richmond Valley Council and Clarence Valley Council;
- The rights and interests of the Crown in right of the State of New South Wales;
- The 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;
-The rights and interests granted by the Commonwealth pursuant to statute or otherwise in the exercise of its executive power;
The rights or interests held by reason of the force and operation of the laws of the State of New South Wales or of the Commonwealth;
- The rights and interests of members of the public arising under common law including but not limited to: fishing and navigation;
- The right to access land by an employee or agent or instrumentality of the State of New South Wales, of the Commonwealth or of other statutory authority as required in the performance of his or her statutory or common law duties.
- Any existing public access to and enjoyment of: waterways, beaches, stock routes, and areas that were public places at the end of 31 December 1993;
- Any legal or equitable estate or interest in the land or waters of the area;
- Any right, charge, power, or privilege over, or in connection with: the land or waters of the area, or an estate or interest in the land or waters in the area.
Provisions Relevant to the Native Title Rights
The Bandjalang Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) and to act as an agent for the native title holders. The native title is held on trust for the native title holders.
|Detailed Information: |
|Details of Judgement|
The parties to the determination, reached an agreement as to the terms of a determination of native title to be made in relation to the Determination Area. The Court determined that it was appropriate to recognise the native title rights and interests of the Bandjalang People in the agreement. The signed agreement 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. The determinations for the Bandjalang People No 1 and No 2 were heard together in order to save time and resources in hearing the native title claim.
The Bandjalang People first lodged a native title application in the 1996 and a bigger, second application was lodged in 1998. The claim took 17 years to have their relationship with the land formally and legally recognised by the Federal Court on 2 December 2013 pursuant to the Native Title Act 1993 (Cth). The timeframe reflects the complexity of the claim. The land that is now recognised by native title is the third successful claim in New South Wales and protects spiritually significant sites such as the Goanna Headland which contains more than 20 archaeological sites within. The determination does not affect existing property rights in the area.
In total, the claim area covers approximately 2,750 square kilometres spanning from Evans Head, north-west to Casino, inland to Bushby Flats and south to Junction Hill near Grafton in New South Wales. The Bandjalang native title applications cover parks and reserves such as the Broadwater National Park and parts of Banyabba and Mount Neville nature reserves and Bundjalung National Park. Other Crown Land and State Forest is also included in this determination.