Sunday, September 03, 2017

The Western Bundjalung Native Title Decision

The photograph from ABC North Coast shows some of the traditional owners gathered to hear the Federal Court’s decision on the Western Bundjalung Native Title Case.

This post discusses the Federal Courts decision on the West Bundjalung application for Native Title under the Commonwealth Native Title Act 1993. I have given some links within the post, with the major media sources I have drawn from listed at the end of the post. The Federal Legislation is different from the NSW Aboriginal Land Right Act 1983 that, among other things, granted NSW Aboriginal peoples certain land rights and provides for the administration of that land including the NSW Aboriginal Land Council and Local Land Councils.

By way of background especially for international readers, the Bundjalung are one of New England’s biggest language groups whose territory stretched from the Clarence River onto the Northern Tablelands and into what is now Queensland. There are a number of Bundjalung dialects whose speakers occupy major territories within the overall territory.

The map gives an indication of the full Bundjalung territory.

The Decision

Tabulam, 29 August 2017.Around 400 people including traditional owners gathered in a crowded marquee erected on the local racecourse as a temporary courthouse to hear the consent determination delivered in the long-running Western Bundjalung Native Title case.

After a Welcome to Country and traditional smoking ceremony, Federal Court Judge Jayne Jagot delivered her consent judgement. This granted the native title claim, legally recognising the rights and interest of the Western Bundjalung people as traditional owners of the land, including the right to camp, hunt, fish, gather resources and conduct their cultural practices on their country, as well as the right to be consulted on matters including mining applications on their land that affect the management of their land. You can find the full decision here.

The Western Bundjalung determination is the 10th in NSW since the Native Title Act came into force in 1993.

While not very clear, the map provides an indication of the scope of country covered by the determination.  

Western Bundjalung territory extends from the Clarence River at Moleville, north of Grafton, to Carpet Snake Creek, north of Tabulam, and from the Hogarth Range in the east to Bald Rock National Park in the west.

It includes the Aboriginal settlements at Baryulgil, Malabugilmah, Jubullam Village and Jubal. The two main water courses of Western Bundjalung country are the Clarence River and the Rocky River.

The claim area covers more than 5,000 square kilometres and contains 24 national parks, nature reserves and state conservation areas. A total of 820 land identification areas have been granted native title within the Western Bundjalung claim boundary.

This includes all national parks and state forests within the claim perimeter. However, there are some lots within the parks and forests that are not having native title recognised because investigation showed that it was freehold land  which extinguishes native title.

A long and arduous process

The path to the consent determination has been long and complicated.

In the 1990s, some six native title claims were lodged for different portions of land within the Western Bundjalung nation. It wasn't until 2011 that the descendants of about 19 apical (literally sitting at the apex) ancestors from the area united to lodge a combined claim.

From that point, the claimants had to establish that they that they were descended from apical ancestors living within the claim area prior to British settlement. They had also to establish a continuing cultural connection with the land handed down over the generations since the Europeans occupied the land.

To achieve this, a research team supported by the NTSCorp conducted anthropological interviews and undertook research to establish genealogy and cultural connection and continuity. 

Dr Ken Lum, NTSCorp Research Manager, said the group's evidence to prove their continuing connection to country was strong.

"Numerous claimants gave affidavits about the connection to country including information about Dreaming stories and continuing cultural practices such as turtle diving," he said.

In addition to the evidence required to establish the basis of claim, land tenure research is required to determine where native title could be established to avoid clashes with freehold titles

Once the evidence has been agreed on between the claimants and the relevant government bodies the claim is determined in the High Court or the Federal Court.

In all, more than 250 people, including indigenous elders and community members, were involved in the native title negotiations for parcels of land within the Western Bundjalung nation..

The process is complex even when all parties agree. A report released by the National Native Title Tribunal in 2009 said native title claims take an average of six years to resolve in the Federal Court when all parties agree.

The high levels of evidence needed to prove native title coupled with lengthy court processes and cost have been cited among the main factors that delay native title determinations.

In delivering her judgement, Federal Court Justice Jagot stated that the native title process was still taking too long in New South Wales.

"It's taken six years to get here from the filing of the claim and many years I know in the lead up to the making of that claim," she said. "They've not been easy years".

"I believe that this does perpetuate injustice by other means."


I have drawn together a number of the responses reported in the various media reports.

Gary Brown, a member of one of 10 families who made the joint Western Bundjalung claim, said the unified approach adopted by himself and the other applicants could be the key to getting other claims considered in a more timely manner.

"I think we might set a precedent here," he said. "Where others can be able to look at our claim, and say, pick a few things out of it. So it will be good for them to go ahead."

Applicant Joan Hippi cried tears of joy as the determination was made. "First and foremost, I wish to acknowledge the land we stand on today cause it is a foundation for social, economic and employment outcomes for our future generations," she said. "This is a big thing for us today. This is the start of a new beginning."

Applicant Dave Walker said he would celebrate in the best way he knew how.

"I might just sleep … sleep on my land down here tonight on the side of the river," he said. "I've got no blanket or anything but I'll just go down and make a fire and just sit up and enjoy it, I think. Because it's our land."

The NSW Aboriginal Land Council (NSWALC) welcomed the decision. Tina Williams, NSWALC councillor for the North Coast, said the determination provided rights and recognition for future generations.

‘The Western Bundjalung determination strengthens our connection to country and our ability to teach culture,’ she said. ‘While the claim was lodged in 2011, the fight for land justice and recognition goes back a long way.

‘Our Elders fought tirelessly for this day and I pay respect to those who sadly passed away while the claim was being determined.”

Cr Williams said the determination also showed how Land Rights and Native Title could work together. Today is a great day for Land Rights and Native Title. We may operate under different legislation and systems but we work together.

Jubullum, Baryulgil, Casino Boolange, Grafton Ngerrie, Moombahlene and Jana Ngalee Local Aboriginal Land Councils have been part of this journey.‘When Native Title and Land Rights work together, we can focus on the bigger picture of building our people economically, social and culturally.’

In my introduction, I mentioned that the NSW Land Rights Act and the Federal Native Title legislation both applied in NSW in different ways. The NSWALC and the Local Aboriginal Land Councils are established under the NSW Act.

Terry Robinson is honoured to be looking after his ancestors' country. "Our country, our Jugun, has looked after us and it is now our turn to look after country."

The Native Title Services Corporation (now NTSCorp) has supported the claimants through the processes to gain Native Title. Chief executive Natalie Rotumah, herself a Bundjalung woman, credited the hard work of the western Bundjalung community for their commitment to securing native title.

She paid respect to those original claimants who had passed away since the claim was lodged. “It has been a long fight begun by my grandparents and the other Elders of that generation for recognition as Western Bundjalung Traditional Owners".

Next Steps

This victory is just the first step for the Western Bundjalung. They have to decide how to manage their new rights and responsibilities.

As a first step, the group have established the Ngullingah Jugun (Our Country) Aboriginal Corporation to manage their native title rights and interests. The Corporation will play a key role in representing Western Bundjalung people's interests in negotiations with government and private organisations.

Claimant Graeme Walker said the corporation will be used as a vehicle to have their rightful say about the management of their land. "Any businesses looking to do work in Western Bundjalung country should be coming to us first and we are looking forward to working with them," he said.

There is a difficulty here. While Prescribed Body Corporates are intended to establish an economic base for native title holders on their country, they have not been adequately funded by the Federal Government and has a consequence have struggled to carry out their roles, to maximise the gains that might flow from the native Title decisions.

There is also an issue as to how Ngullingah Jugun Aboriginal Corporation might mesh with the NSW Land Rights system, including the Local Aboriginal Land Council. This will need to be resolved through discussion.

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