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Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604

Category: Agreement
Date: 16 June 2015
Sub Category:Consent Determination (Native Title Act)
Location:Located in far west New South Wales, New South Wales, Australia
The determination area is outlined in Schedule 3 and 4 of the judgment. It covers 128,482 square km of land and waters in far west New South Wales. The external boundaries of the claim stretch from just south of the Queensland border at Wanaaring, around Wilcannia, Menindee and Broken Hill to the Victorian border at the Murray River.
Legal Status: Registered on the National Native Title Register.
Legal Reference: Tribunal file no.: NCD2015/001; Federal court file no.: NSD6084/1998.
Subject Matter:Native Title
Summary Information:
Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604

Between:

WILLIAM CHARLES BATES, MURRAY BUTCHER, DEREK HARDMAN, CYRIL JAMES HUNTER, MARY-ANN MARTON, MAUREEN O'DONNELL AND JENNIFER WHYMAN ON BEHALF OF THE BARKANDJI TRADITIONAL OWNERS (applicants);

and

ATTORNEY GENERAL OF NEW SOUTH WALES, THE MURRAY DARLING BASIN AUTHORITY, BROKEN HILL CITY COUNCIL, WENTWORTH SHIRE COUNCIL, BROKEN HILL LOCAL ABORIGINAL LAND COUNCIL, DARETON LOCAL ABORIGINAL LAND COUNCIL, MENINDEE LOCAL ABORIGINAL LAND COUNCIL, MUTAWINTJI LOCAL ABORIGINAL LAND COUNCIL, WILCANNIA LOCAL ABORIGINAL LAND COUNCIL, NEW SOUTH WALES ABORIGINAL LAND COUNCIL, CRAIG ANDREW BELL, GLEN GENE BELL, NYOLI MERLE BELL, ESTATE OF THE LATE SYDNEY GEORGE MAYNARD, DONALD BACH LANGFORD, MALCOLM JAMES MAYNARD, JANE MCCLURE, POWERCOR AUSTRALIA LTD, STANLEY WINE CO PTY LTD, ERNST HENRY VOULLAIRE, KEVIN JOHN VOULLAIRE, MARGARET PATRICIA VOULLAIRE, RODNEY JAMES VOULLAIRE, CRISTAL MINING AUSTRALIA (FORMERLY BEMAX RESOURCES NL), MURRAY BASIN TITANIUM PTY LTD, TRANSGRID, TELSTRA CORPORATION LIMITED and MUTAWINTJI NATIONAL PARK BOARD OF MANAGEMENT (respondents).

Judge: Jagot J

Where made: Broken Hill, NSW

Determination:

Native title exists in parts of the determination area. It consists of areas of exclusive native title rights, and areas of non-exclusive native title rights.

Native title is held by the Barkandji People.

Native title rights in exclusive areas:

- the right to possession, occupation, use and enjoyment to the exclusion of all others.

Native title rights in non-exclusive areas:

- the right to enter, travel over and remain on the non-exclusive areas;
- the right to take and use the natural resources (other than water) of the non-exclusive areas;
- the right to take and use the water of the non-exclusive areas for personal, domestic and communal purposes (including cultural purposes and for watering native animals, cattle and other stock, and watering gardens not exceeding 2 hectares), but not extending to a right to control the use and flow of the water in any rivers or lakes which flow through or past or are situate within the land of two or more occupiers;
- the right to camp and for that purpose to erect temporary shelters and temporary structures in the non-exclusive areas;
- the right to light fires in the non-exclusive areas for domestic purposes, but not for the clearance of vegetation;
- the right to engage in cultural activities on the land, to conduct ceremonies, to hold meetings, and to participate in cultural practices relating to birth and death including burials on the land the subject of the non-exclusive areas;
- the right to have access to, to maintain and to protect from physical harm sites and places of importance in the non-exclusive areas which are of significance to the Barkandji and Malyangapa People under their traditional laws and customs;
- the right to teach on the non-exclusive areas the physical, cultural and spiritual attributes of places and areas of importance on or in the non-exclusive areas;
- the right to hunt in the non-exclusive areas;
- the right to fish in the non-exclusive areas; and
- the right to be accompanied on the non-exclusive areas by persons who, though not native title holders, are:
(i) spouses, partners or parents of native title holders, together with their children and grandchildren;
(ii) people whose presence is required under traditional laws and customs for the performance of cultural activities, practices or ceremonies;
(iii) people requested by the native title holders to assist in, observe or record cultural activities, practices or ceremonies

The native title rights in non-exclusive areas do not confer:

- possession, occupation, use or enjoyment of the non-exclusive areas to the exclusion of all others; or
- any right to control access to, or use of, the non-exclusive areas.

The native title rights and interests are subject to and exercisable in accordance with:

- the laws of the State of New South Wales and of the Commonwealth;
- the traditional laws acknowledged and the traditional customs observed by the Barkandji and Malyangapa People; and
- the terms of any Indigenous Land Use Agreement which may be registered by the National Native Title Tribunal in respect of any part of the Determination Area whether made before or after the making of this determination.

There are no native title rights in or in relation to:

- minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2010 (NSW); and
- petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW) and the Petroleum (Submerged Lands) Act 1982 (NSW).

Non-native title rights and interests that exist within the determination area:

1. Aboriginal Land Council Interests
(a) The rights and interests of Dareton Local Aboriginal Land Council, Menindee Local Aboriginal Land Council or Wilcannia Local Aboriginal Land Council (as the case may be) as the holder of a freehold or leasehold title over the areas of land or waters within the Exclusive Areas as follows:
Local Aboriginal Land Council: Areas over which freehold or leasehold title held
Dareton Local Aboriginal Land Council: Lot 1186 DP 820174
Menindee Local Aboriginal Land Council: Lot 76 DP 40661; and Lot 3 DP 754343
Wilcannia Local Aboriginal Land Council: Lot 109 DP 39794; Lot 10 DP 757028; and Lot 20 DP 757028
(b) The rights and interests of New South Wales Aboriginal Land Council, Broken Hill Local Aboriginal Land Council, Dareton Local Aboriginal Land Council, Menindee Local Aboriginal Land Council, Mutawintji Local Aboriginal Land Council and/or Wilcannia Local Aboriginal Land Council (as the case may be) pursuant to undetermined Aboriginal land claims made under s 36 of the Aboriginal Land Rights Act 1983 (NSW) in respect of certain lands within the non-exclusive areas, including, subject only to a determination that the land is claimable Crown land as defined in s 36(1) of that Act, the right to the transfer of an estate in fee simple pursuant to that Act.

2. Reserves
(a) The rights of organisations or persons who have the care, control and management of any reserves within the non-exclusive areas;
(b) The rights of the holders of leases, licences or permits in respect of, or easements or rights of way over, any reserves within the non-exclusive areas; and
(c) The rights of persons entitled to access and use any reserves within the non-exclusive area for the respective purposes for which they are reserved, subject to any statutory limitations upon those rights.

3. Mining and petroleum interests
(a) The rights of the holders of any mining interests.
(b) The rights of the holders of any petroleum interests.

4. Water interests
(a) The rights of the holders of the following licences and of any other licences or permits granted under the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW) ('Water Management Act'):
(i) Water Supply Works Approval 60WA580721;
(ii) Water Access Licence WAL4908;
(iii) Water Access Licence WAL13132;
(iv) Water Access Licence WAL13133;
(v) Water Access Licence WAL10398;
(vi) Water Access Licence WAL10399; and
(vii) Water Access Licence WAL29910 60AL582713.
(b) The rights of the holders of the following Permissive Occupancies and of any other Permissive Occupancies:
(i) Permissive Occupancy granted to The Stanley Wine Company Pty Ltd as and from 4 January 1984 for Pump Site and Rising Main.

5. Murray-Darling Basin Authority
The rights and interests of the Murray Darling Basin Authority:
(a) as the entity responsible for performing the functions and duties, and exercising the powers, relating to the management of Basin water resources conferred on it by the Water Act 2007(Cth) ('Water Act');
(b) as the entity responsible for performing the functions and duties and exercising the powers conferred on it by the Murray Darling Basin Agreement set out in Schedule 1 of the Water Act , as authorised by Parts 9, 10 and 10A of that Act and Part 3A of the Water Management Act;
(c) created, conferred or imposed pursuant to its functions or duties or the performance thereof, or the exercise of its powers under:
(i) the Water Act or the Water Management Act and any regulation or legislative instrument made under either of those Acts;
(ii) the Murray-Darling Basin Agreement set out in Schedule 1 of the Water Act or any corporate plan, asset management plan, asset agreement or service level agreement made, and any river management operations and objectives an outcomes document approved, under that Agreement;
(iii) the Basin Plan adopted by the Minister under the Water Act; and
(iv) any resolution or determination of the Murray-Darling Basin Ministerial Council or the Basin Officials Committee made under the Murray-Darling Basin Agreement.

6. Telecommunications interests
The rights and interests of Telstra Corporation Limited (ACN 051 775 556) and any other holder of a carrier licence under the Telecommunications Act 1997 (Cth):
(a) as the owner or operator of telecommunications facilities within the Determination Area;
(b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporations Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights:
(i) to inspect land; and
(ii) to install and operate telecommunications facilities; and
(iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities.
(c) for its employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the Determination Area in performance of their duties; and
(d) under any lease, licence, access agreement, or easement relating to its telecommunications facilities in the Determination Area.

7. Electricity supply interests
(a) The rights and interests of an energy services corporation within the meaning of the Energy Services Corporations Act 1995 (NSW) to exercise functions, powers or rights in accordance with the laws of the State of New South Wales or of the Commonwealth and as owner and operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure situated on the determination area including but not limited to the right to enter the Determination Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with existing facilities and infrastructure.
(b) The rights and interests of:
(i) a network operator within the meaning of the Electricity Supply Act 1995 (NSW); and
(ii) for the purposes of any privatisation transaction, any lessor or lessee of a transmission system or person who owns or is authorised to control or operate a transmission system,
to exercise functions, powers or rights in accordance with the law of the State of New South Wales or of the Commonwealth as operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure situated on the Determination Area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with existing facilities and infrastructure.
(c) The rights and interests of Powercor Australia Ltd:
(i) as the holder of occupation permit 14745 under the Forestry Act 1916 (NSW), as continued in force under the National Parks and Wildlife Act 1974 (NSW);
(ii) as the owner or operator of electricity facilities within the determination area, including overheard and underground cabling; and
(iii) for its employees, agents or contractors to enter the determination area in the performance of their duties, to access its electricity facilities in, and in the vicinity of, the determination area.

8. Local Government interests
The rights and interests of the Broken Hill City Council and Wentworth Shire Council as councils constituted under the Local Government Act 1993 (NSW).

9. Commonwealth interests
The rights and interests of the Bureau of Meteorology as the owner, operator and manager of the automatic weather station located on part of Lot 4420 on DP766863 at the White Cliffs Airport.

10. Other interests generally
(a) Rights and interests, including licences and permits granted by the Crown in right of the State of New South Wales or of the Commonwealth pursuant to statute or under regulations made pursuant to such legislation.
(b) Rights and interests held by reason of the force and operation of the laws of the State of New South Wales or of the Commonwealth.
(c) Rights and interests of members of the public arising under common law.
(d) So far as is confirmed pursuant to s 18 of the Native Title (NSW) Act as at the date of the determination, any existing public access to and enjoyment of:
(i) waterways;
(ii) the bed and banks or foreshores of waterways;
(iii) stock routes; and
(iv) areas that were public places at the end of 31 December 1993.
(e) The right to access the determination area by:
(i) an employee, agent or instrumentality of the State of New South Wales;
(ii) an employee, agent or instrumentality of the Commonwealth; and
(iii) an employee, agent or instrumentality of any local government authority;
as required in the performance of his, her or its statutory or common law duty.

The relationship between the native title rights and interests and the non-native title rights and interests

The relationship between the native title rights and interests in the non-exclusive areas and the other interests in those areas is as follows:
- the determination does not affect the validity of those other interests;
- to the extent of any inconsistency between the other interests and the continued existence, enjoyment or exercise of the native title rights and interests, the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and
- otherwise, the other interests co-exist with the native title rights and interests and, for the avoidance of doubt, the doing of an activity required or permitted under those other interests prevails over the native title rights and interests and their exercise, but does not extinguish them.

The relationship between the native title rights and interests in the exclusive areas and the other interests is as follows:
- the Aboriginal Land Council Interests continue to have effect;
- the non-extinguishment principle in s 238 of the NTA applies to the grant or vesting of the Aboriginal Land Council Interests and any prior interest in relation to the area; and
- the native title continues to exist in its entirety but the rights and interests have no effect in relation to the Aboriginal Land Council Interests.

Provisions relevant to the Native Title rights:

- the Barkandji Native Title Group Aboriginal Corporation, as the prescribed body corporate, is to perform functions required under the Native Title Act 1993 (Cth) after becoming a registered native title body corporate;
- native title is held in trust for the Barkandji People.

Detailed Information:
Background

The native title application was first made on 8 October 1997, and has since been amended to reflect the final decision of the Barkandji People about their claim. It was an application under s 61 of the Native Title Act 1993 (Cth) for the recognition of the Barkandji People as the holders of native title rights and interests over their country.

There were no overlapping or competing native title claims over the claim area or any Indigenous respondents opposing the Barkandji claim.

The successful native title claim has provided the Barkandji People with formal recognition of approximately 128,482 square kilometres of land and waters.

Details of Judgement

Through mediation, agreement has been reached as to the terms of a determination of native title to provide recognition of the native title rights and interests held by the Barkandji People in relation to part of the land and waters covered by the Barkandji claim. The signed document 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.

Related Entries

Organisation
  • Menindee Local Aboriginal Land Council - Respondent
  • Attorney General of New South Wales - Respondent
  • Mutawintji Local Aboriginal Land Council - Respondent
  • New South Wales Aboriginal Land Council - Respondent
  • Powercor Australia - Respondent
  • Telstra Corporation Limited - Respondent
  • Mutawintji National Park Board of Management - Respondent
  • Murray Darling Basin Authority - Respondent
  • Broken Hill City Council - Respondent
  • Wentworth Shire Council - Respondent
  • Broken Hill Local Aboriginal Land Council - Respondent
  • Dareton Local Aboriginal Land Council - Respondent
  • Menindee Local Aboriginal Land Council - Respondent
  • Wilcannia Local Aboriginal Land Council - Respondent
  • Stanley Wine Co Pty Ltd - Respondent
  • Cristal Mining Australia - Respondent
  • Murray Basin Titanium Pty Ltd - Respondent
  • TransGrid - Respondent
  • People
  • Barkindji (Barkandji) People
  • William Charles Bates and others on behalf of the Barkandji Traditional Owners - Native Title Applicants
  • Place
  • Mutawintji National Park
  • Case Law
  • Lawson v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 165 (16 February 2004)

  • Documents

    Document
    Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 - Consent Determination Extract - ( PDF | PDF)
    Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 - Schedule 2 Plan of Determination Area - ( PDF)
    Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 - Schedule 4 Description of the Non-Exclusive Areas - ( PDF)
    Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 - Schedule 5 Description of Extinguished Areas - ( PDF)
    Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604 - Schedule 6 Description of Excluded Areas - ( PDF)

    Glossary

    Aboriginal and Torres Strait Islander (Australia) | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Native Title (Australia) | Native Title Determination (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Applicants | Native Title Registers | Native Title Representative Body (NTRB) (Australia) | Native Title Claimants (registered) (Australia) | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Native Title Claimants (unregistered) (Australia) | Native Title Applications/Claims (Australia)

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