Native Title Update

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Native Title Update

  • Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 (31 August 2017)

In a landmark decision by the Federal Court, native title rights have been granted to the Yaegl People for their offshore claim. The area stretches 90 kilometres in distance and 200 metres wide on the New South Wales north coast. The rights are not exclusive but mean that the native title holders cannot be restricted from using the waters for non-commercial purposes.

  • Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 (29 August 2017)

Last week, the Federal Court also approved a native title land claim for the Western Bundjalung People. The extent of rights in the area are non-exclusive meaning whilst native title holders cannot exclude others from their land, they are permitted uninterrupted access to the land and the traditional natural resources it provides unless contrary to law or the exclusions set out in the judgment.

In obiter, Justice Jagot was critical of the apparent systemic issues in resolving native title claims in New South Wales. Her Honour stated that:

‘if the systems and processes of the State mean that orders of the Court are routinely breached and outcomes for prima facie cogent claims can only be achieved after substantial delay, at substantial cost and subject to an ever present risk of last minute derailment then, from the Court’s perspective, those systems and processes are inadequate..’. 

In order to remedy the system, Jagot J proposed that judicial case management alone is insufficient, rather the State must take the responsibility to develop a centralised system much like other States and Territories to create a system that is fair and efficient.

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