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Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479 (23 October 2001)

Category: Agreement
Binomial Name: Federal Court of Australia
Date: 23 October 2001
Sub Category:Consent Determination (Native Title Act)
Location:Byron Bay, New South Wales, Australia
Land in the location of Byron Bay, New South Wales. Commencing at the north west corner of portion 218 Shire of Byron, Parish of Byron, County of Rous, extending north to the southern boundary of Lighthouse Road, extending north east following the southern boundary of Lighthouse Road to the north western boundary of Tallow Beach Road, extending south east following the southern boundary of Tallow Beach Road to the eastern boundary of portion 218, extending south following the eastern boundary of portion 218 to the south east corner of portion 218, extending south following the eastern boundary of MS 691 Gfn Parish of Byron, County of Rous for 20 metres, then extending west to the western boundary of MS 691 Gfn Parish of Byron, County of Rous then extending north to the point of commencement.
Legal Status: Registered on the National Native Title Register (
Legal Reference: Federal Court No: NG6088/98 (or NG6088 of 1998); N
Alternative Names:
  • Byron Bay Bunjalung People #2
  • Byron Bay
  • Kelly v NSW Aboriginal Land Council [2001] FCA 1479
  • Subject Matter:Environmental Heritage | Land Transaction | Native Title | Native Title - Extinguishment
    URL: http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/1479.html
    Summary Information:
    Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479

    Between: Lorna Kelly and Linda Vidler on behalf of the Byron Bay Bundjalung People (APPLICANTS) AND
    New South Wales Aboriginal Land Council
    the Minister for Land and Water Conservation for the State of New South Wales
    Telstra Corporation Limited
    (RESPONDENTS)

    Judge: Branson J
    Where: Sydney, Australia.

    Determination: Native title does not exist in the determination area.

    See the 'URL' link to the homepage of this entity below for complete text of the determination.
    Detailed Information:
    The application in this matter was lodged in the National Native Title Tribunal on 12 December 1997. The applicants were Lorna Kelly, Linda Vidler and Yvonne Graham, who were at the time represented by the New South Wales Aboriginal Land Council. In 1998 the Minister for Land and Water Conservation for the State of New South Wales; the New South Wales Aboriginal Land Council; and Telstra Corporation Limited were joined as parties to the application.

    The application came under the jurisdiction of the Federal Court following the 1998 amendments to the Native Title Act 1993 (Cth), and was then on 26 November 1998 referred by the Registrar of the Court back to the Tribunal for mediation. Agreement was reached that the claimant group would be described as the Byron Bay Bundjalung People. Nonetheless documents subsequently filed in the proceeding describe the applicants in the proceeding as 'Lorna Kelly and Linda Vidler on the behalf of the Arakwal People'. The Arakwal people are the sub-group, tribe or estate group of the Bundjalung nation encompassed by the description 'the Byron Bay Bundjalung People'.

    Between 27 September and 2 October 2001 each of the parties filed in the Court a signed copy of an agreement. Through the course of the negotiations, an Indigenous Land Use Agreement (ILUA) was drawn up. The conditions of the consent determination were based on the drawing up of this agreement and the Tribunal's registration of the ILUA. One condition of the ILUA registration is that the Byron Bay Bundjalung people surrender to the State of New South Wales any native title rights and interests they may hold in the land under question. The ILUA in return provided for a number of benefits to the Byron Bay Bundjalung people, including the creation of the Arakwal National Park, the transfer of areas of land known as the Iron Bark Avenue Land and Paterson Street Land to the Arakwal Corporation, and the dedication of certain land as a nature reserve.

    The court consequently determined that native title did not exist in the land subject to the original native title application (as it was agreed to be surrendered and thus extinguished). The power of the Court to make such an order was discussed in detail by Justice Branson in the consent determination. She concluded the Court did have such a power but that it should be exercised with caution and with regard to the object and purpose of the Native Title Act 1993 (Cth). Justice Branson found that determining that native title did not exist satisfied the 'public interest' in ensuring negotiated settlements are accepted in preference to contested (litigated) determinations.

    Related Entries

    Agreement
  • Bundjalung of Byron Bay (Arakwal) Indigenous Land Use Agreement (ILUA) - Requirement
  • Byron Shire-Arakwal People Heads of Agreement
  • Arakwal State Recreation Area Agreement
  • Byron Shire-Arakwal People Memorandum of Understanding
  • Bundjalung People of Byron Bay Indigenous Land Use Agreement (ILUA 2)
  • Organisation
  • New South Wales Aboriginal Land Council - Respondent
  • National Native Title Tribunal
  • Federal Court of Australia
  • State of New South Wales
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)
  • People
  • Lorna Kelly and Linda Vidler on behalf of the Byron Bay Bundjalung People - Native Title Claimant
  • Minister for Land and Water Conservation - Respondent
  • Arakwal People
  • Bundjalung People

  • References

    Case Law
    Commonwealth of Australia (2001) Kelly on behalf of the Byron Bay Bundjalung People v NSW Aboriginal Land Council [2001] FCA 1479 (23 October 2001)
    Media Release
    National Native Title Tribunal (1998) 'Byron Shire - Arakwal People Agreement: A Step Forward for NSW'
    Resource
    National Native Title Tribunal (2004) Native Title by Consent Determinations

    Glossary

    Consent Determination (Native Title Act 1993 (Cth)) (Australia)

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