Posted on January 20, 2014 by
Native Title Declared over NSW North Coast Land by Federal Court
17 years of arduous legal argument and conciliation came to conclusion on 2 December 2013 with the consent determination of the Bandjalang peoples’ claim by Jagot J in the Federal Court in Bandjalang People No 1 & 2 v Attorney General of NSW  FCA 1278. You can read the full decision here. A special hearing at Evans Head formally recognised the rights of the Bandjalang People over 2,700 square kilometres of land bordered by Casino, Evans Head and Grafton, and takes in land now made up of national parks, State forests, Crown Land and land administered by Councils. Lindsay Taylor Lawyers represented one of the parties to the consent determination which supported the claim.
The Bandjalang People have been granted recognition under the Native Title Act 1993 (Commonwealth) to allow them to ‘hunt, fish and gather’; ‘take and use waters’; ‘access and camp’; ‘perform ceremonies’; ‘teach the physical, cultural and spiritual attributes of the land’ to the next generation of indigenous custodians, and to maintain and protect significant sites.
The decision also gives the Bandjalang people the right to be consulted on development generally, including mining proposals.
Slow pace of determination for Native title claims
On his retirement in 2013, Gray J of the Federal Court noted that since the Mabo decision, Native title had been recognised in only 181 instances; and found not to exist in 48 cases. Australians for Native Title and Reconciliation (ANTAR) stated in 2012 that the average Federal Native title claim took approximately 15 years to determine and that, at that time, there were still 473 active claims being processed through the Federal Court.
In handing down her decision in the Bandjalang matter Jagot J stated: ‘It is not only my hope, but also my expectation, that the work which has enabled these determinations to be made today will enable future outcomes of a similar kind to be more readily achievable.’
The Bandjalang decision came as a result of a consent determination, meaning that all 8 Respondents agreed to a document recognising Native title. That document was then given the authority of the Federal Court by Jagot J’s decision. The collaborative effort of all the parties will hopefully become a blueprint for quicker decision making in future Native title claims.
State and Federal Law
Native title under the Federal Act should be distinguished from land rights under the New South Wales Aboriginal Land Rights Act 1983. The Federal Act flows from the famous Mabo High Court decision. Native title under the Federal legislation acknowledges a continuous traditional custodianship of the land in question. Under the State Act, Aboriginal Land Councils are given rights, usually by the grant of freehold title.