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Editors --- "Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council - Case Summary" [2002] AUIndigLawRpr 10; (2002) 7(1) Australian Indigenous Law Reporter 33

Court and Tribunal Decisions - Australia

Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council

Federal Court of Australia (Branson J)

23 October 2001

[2001] FCA 1479; BC200107405

Native title — registered indigenous land use agreements — consent order — power of the Federal Court to make orders agreed to by the parties without holding a hearing — exercise of Court discretion under the Native Title Act 1993 (Cth) s 87

Facts

The parties included the Byron Bay Bundjalung People, the State of NSW, the NSW Aboriginal Land Council and the Telstra Corporation Limited.

The application in this matter was originally lodged in the National Native Title Tribunal (the Tribunal) on 12 December 1997. The applicants claimed to hold native title to certain land in the location of Byron Bay, NSW, together with other members of the Arakwal people of the Bundjalung Nation.

The application was deemed to have been made to the Federal Court of Australia on 30 September 1998 under the Native Title Amendment Act 1998 (Cth). The Registrar of the Court referred the application back to the Tribunal for mediation on the 26 November 1998.

The parties reached an agreement as to the terms of the determination of native title to be made. The agreement was contained in an Indigenous Land Use Agreement (ILUA) which was registered by the Native Title Registrar on 28 August 2001. The ILUA provided for the surrender of native title of the land being claimed to the State of NSW.

The parties then made an application to the Court for an order consistent with their agreement that native title did not exist in the land claimed.

Held, allowing the application

1. The Court is empowered under s 87 of the Native Title Act 1993 (Cth) (the Act), to make orders in the terms agreed by the parties without holding or completing a hearing as the conditions specified in that section are satisfied. [16], [17], [20], [24]

2. On the facts:

(a) Section 87(1)(a) was satisfied because there was an agreement reached between the parties on the terms of an order of the Federal Court in relation to the proceedings. [17]
(b) Section 87(1)(b) was satisfied because the terms of the agreement were filed with the Court in writing and signed by or on behalf of the parties. [17]

3. Because the State Minister had, pursuant to a valid and binding agreement between the parties, accepted the surrender of any native title that may have previously existed in the land, and under s 24EA of the Act, an agreement entered on the Register of Indigenous Land Use Agreements is binding on all persons holding native title in the relevant land, including those who are not already parties to the agreement, it was within the power of the Court to order that native title did not exist in the land notwithstanding that no hearing had been held and the Court was not in a position itself to form a conclusion whether or not native title existed in the land claimed. [17]–[19]

4. The Court must also consider whether it would be an appropriate exercise of its discretion under s 87(1) of the Act to make the orders sought: [20]. Factors to be taken into account include:

(a) A court must exercise caution where any declaratory order involving property rights is sought especially those involving public interest elements.
(b) The Court must have regard to the objects and purposes of the Act including the resolution of issues and disputes concerning native title by mediation and agreement rather than by Court determination.
(c) The parties must have received appropriate legal advice and representation.
(d) When such an agreement is reached without requiring a determination by the court it is often in the public interest because it avoids proceedings that are potentially lengthy, costly and divisive to the community.
(e) The court must take into account the possible effect of orders that might be made.

Munn for and on behalf of the Gunggari People v Queensland [2001] FCA 1229; (2001) 6(4) AILR 40; Ngalpil v State of Western Australia [2001] FCA 1140; Congoo v State of Queensland [2001] FCA considered. [20]–[23]

5. Having regard to the objects and purposes of the Act and considering that the parties received appropriate legal advice and were represented, and that the making of the orders sought would in no way prejudice the interests of the community, it was an appropriate exercise of the Court’s discretion to make the orders sought by the parties.