Agreement)

[2022] FCA 1521

FEDERAL COURT OF AUSTRALIA

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87

Agreement) [2022] FCA 1521

File number(s):	NSD 1213 of 2018 NSD 1174 of 2013
Judgment of:	RARES J
Date of judgment:	19 December 2022
Catchwords:	NATIVE TITLE – consent determination under s 87 Native Title Act 1993 (Cth) – where one member of applicant died and another became incapable prior to entry into s 87 agreement – whether authorisation of applicant under s 251B to prosecute claimant application for determination of native title under s 61(1) of Act (Form 1) affected by member’s death or incapacity – where description of native title claim group in s 87 agreement expanded in Form 1 to include persons who become members of claim group by way of adoption or incorporation and their descendants – whether Court’s power to make determination under s 87 limited by claim group description in Form 1 – Held: majority of living capable members of applicant can continue to act; description of claim group in Form 1 does not limit Court’s power to make consent determination with expanded description of claim group
Legislation:	Constitution Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Federal Court of Australia Act 1976 (Cth) ss 5, 23 Native Title Act 1993 (Cth) ss 47C, 56, 57, 61, 62, 64, 66, 66A, 66B, 84, 87, 94A, 190A, 199B, 225, 251A, 251B, 253 Native Title Legislation Amendment Act 2021 (Cth) Sch 1, item 62 Native Title (Federal Court) Regulations 1998 (Cth) reg 5, form 1 Aboriginal Land Rights Act 1983 (NSW) s 36
Cases cited:	Billy Patch and others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 Cashmere on behalf of the Jirrbal People No 1 v Queensland (2010) 283 ALR 610 Dare v Pulham (1982) 148 CLR 658 Eaton on behalf of the Nyamal People (No 10) v State of Western Australia [2019] FCA 1571 FQM Australia Nickel Pty Ltd v Bullen (2011) 191 FCR 261 Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 Long v Northern Territory of Australia [2011] FCA 571 Mabo v State of Queensland (No 2) (1992) 175 CLR 1 Mouda on behalf of the Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233 Mulligan on behalf of the Warlangurru Claim Group v State of Western Australia [2022] FCA 845 Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 Widjabul Wia-bal v Attorney-General of New South Wales [2022] FCA 1187
Division:	General Division
Registry:	New South Wales
National Practice Area:	Native Title
Number of paragraphs:	81
Date of hearing:	19 December 2022
Counsel for the Applicant:	Dr A Frith
Solicitor for the Applicant:	NTSCORP Limited
Counsel for the First	Mr M R Speakman SC (the Attorney-General of New
Respondent:	South Wales), Ms T Jowett and Mr E Lee
Solicitor for the First	Crown Solicitor’s Office
Respondent:
Solicitor for the Second	Mr R James of Byron Shire Council
Respondent:
Solicitor for the Third	Ms R Hellier of Lismore City Council

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521

Respondent:

Solicitor for the Fourth, Fifth	Mr J Behrendt of Chalk & Behrendt
and Ninth Respondents:
Counsel for the Seventh,	The Seventh, Eighth and Tenth Respondents did not appear
Eighth and Tenth  Respondents:
Table of Corrections
Notation A, lines 3–4	The words “twice on 6 July 2022 and 19 October 2022” be deleted and substituted with “three times on 6 July 2022, 19 October 2022 and 12 December 2022”.
Order 4, line 1	The words “Order 2 above” be deleted and substituted with “Order 3 above”.
Paragraph 1, line 5	The word “of” be deleted.
Paragraph 7, line 2	The words “first nation’s” be deleted and substituted with “first nations”.

ORDERS

NSD 1213 of 2018

BETWEEN:	WIDJABUL WIA-BAL PEOPLE Applicant
AND:	ATTORNEY-GENERAL OF NEW SOUTH WALES First Respondent
BYRON SHIRE COUNCIL Second Respondent
LISMORE CITY COUNCIL (and others named in the Schedule) Third Respondent
ORDER MADE BY:	RARES J
DATE OF ORDER:	19 DECEMBER 2022

BEING SATISFIED THAT A DETERMINATION OF NATIVE TITLE IN THE TERMS SOUGHT BY THE PARTIES IS WITHIN THE POWER OF THE COURT AND IT APPEARING TO THE COURT APPROPRIATE TO DO SO BY AGREEMENT OF THE PARTIES UNDER SECTIONS 87(2) AND 87(5) AND IN ACCORDANCE WITH SECTION 94A OF THE NATIVE TITLE ACT 1993 (CTH):

THE COURT NOTES THAT:

A.	On 24 June 2013, the Applicant in proceeding NSD1213/2018 made a native title determination application in accordance with sections 13(1) and 61 of the Native Title Act 1993 (Cth) to the Federal Court of Australia, which has been amended three times on 6 July 2022, 19 October 2022 and 12 December 2022.
B.	The parties have reached an agreement as to the terms of a proposed determination of native title to be made by agreement pursuant to section 87 and in accordance with section 94A of the Native Title Act 1993 (Cth), in relation to the land or waters in the native title determination area, being that:
a. native title exists in relation to a part of the native title determination area (the “native title area”); and
Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521	i

b. native title has been extinguished in relation to the remainder of the native title determination area (the “extinguished area”).

C.	In accordance with section 87(1) of the Native Title Act 1993 (Cth) the parties have filed a minute of proposed determination of native title by agreement.
D.	The Applicant has nominated Widjabul Wia-bal Gurrumbil Aboriginal Corporation, ICN 9856 pursuant to section 56(2) of the Native Title Act 1993 (Cth) to hold the determined native title in trust for the common law holders.
E.	Widjabul Wia-bal Gurrumbil Aboriginal Corporation, ICN 9856 has consented in writing to hold the determined rights and interests comprising the native title in trust for the common law holders and to perform the functions of a registered native title body corporate under the Native Title Act 1993 (Cth).

THE COURT ORDERS THAT:

1. To the extent necessary under section 84D(4)(b) of the Native Title Act 1993 (Cth), there be a determination of native title in the terms proposed in these orders despite any actual or arguable defect in the authorisation of the Applicant seeking a proposed determination of native title by agreement pursuant to section 87 of the Native Title Act 1993 (Cth).

BY AGREEMENT THE COURT ORDERS THAT:

2.          There be a determination of native title in the terms set out below.

3.          The determination of native title takes effect upon the date on which the agreement referred to in paragraph 1 of Schedule Four (agreements) is registered on the Register of Indigenous Land Use Agreements, pursuant to section 199B of the Native Title Act 1993 (Cth).

4.          In the event that the agreement referred to in Order 3 above is not registered on the Register of Indigenous Land Use Agreements on or before 18 December 2025, or at such later time as this Court may order, the matter is to be listed before the Court for a case management hearing.

5.          On the determination of native title taking effect, Widjabul Wia-bal Gurrumbil Aboriginal Corporation, ICN 9856 is to hold the determined native title in trust for the

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 ii

common law holders pursuant to section 56(3) of the Native Title Act 1993 (Cth) and is

to:

(a)	be the prescribed body corporate for the purposes of section 57(1) of the Native Title Act 1993 (Cth); and
(b)	perform the functions set out in section 57(1) of the Native Title Act 1993 (Cth) and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth).

6.          There be no order as to costs.

BY AGREEMENT THE COURT DETERMINES THAT:

7.          Native title exists in relation to the native title area described in Schedule One (native title area) and depicted in the maps at Part 1.7 (maps of the native title area) of Schedule One to this determination of native title.

8. Any extinguishment of native title in relation to the land or waters described in Part 1.5 (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies) of Schedule One (native title area) is to be disregarded in accordance with section 47A(2) of the Native Title Act 1993 (Cth) with the effect that native title is determined to exist in relation to that land or waters.

9. Any extinguishment of native title in relation to the land or waters described in Part 1.6 (land or waters to which section 47B of the Native Title Act 1993 (Cth) applies) of Schedule One (native title area) is to be disregarded in accordance with section 47B(2) of the Native Title Act 1993 (Cth) with the effect that native title is determined to exist in relation to those areas.

10.        Native title has been extinguished in relation to the extinguished area, described in Schedule Two (extinguished area) and depicted on the maps at Part 2.7 (maps of extinguished areas) of Schedule Two to this determination of native title, being subject to a previous exclusive possession act attributable to the State in accordance with section 20 of the Native Title (New South Wales) Act 1994 (NSW) and to which none of sections 47A, 47B or 47C of the Native Title Act 1993 (Cth) apply.

11.        To the extent of any inconsistency between the written description in Schedule One (native title area) and Schedule Two (extinguished area) and the maps in either Schedule, the written description prevails.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521	iii
Native Title Holders

12.        Native title in relation to the native title area is held by Widjabul Wia-bal who comprise all the descendants of the following apical ancestors:

(a)	Bob de Bobbin (also known as Bob Deruhbin), died 1912 at Lismore;
(b)	Topsy Brown (also known as Topsy Larken), born 1849, died 1919 at Dunoon;
(c)	Johnny Bob (also known as Bob Roberts), born circa 1820;
(d)	William “Billy” King, born 1878 at Lismore;
(e)	George Williams, born 1870;
(f)	Kitty Barry, born 1841, died 1911 at Blakebrook; and
(g)	John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860;

including persons adopted or incorporated into the families of those persons and who identify as, and are accepted as, Widjabul Wia-bal in accordance with Widjabul Wia- bal traditional laws and customs (and the biological descendants of those adopted or incorporated persons).

Nature and Extent of Native Title Rights and Interests in the Native Title Area

13.        Subject to paragraphs 14, 15 and 16, the nature and extent of the native title rights and interests in relation to the native title area are the following non-exclusive native title rights:

(a)	the right to access, move about on and traverse;
(b)	the right to camp and erect temporary shelters and other structures but not to permanently camp on, possess or occupy;
(c)	the right to live, being to enter and remain;
(d)	the right to hunt for non-commercial personal, domestic, communal and cultural purposes;
(e)	the right to fish for non-commercial personal, domestic, communal and cultural purposes;
(f)	the right to have access to and use the natural water resources for non- commercial personal, domestic, communal and cultural purposes;
(g)	the right to gather and use the natural resources for non-commercial personal, domestic, communal and cultural purposes;

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 iv

(h) the right to share and exchange the natural resources for non-commercial personal, domestic, communal and cultural purposes;

(i)         the right to share and exchange the natural resources with nearby native title groups for personal, domestic, communal and cultural purposes;

(j)	the right to conduct and participate in ceremonial, ritual and spiritual activities;
(k)	the right to maintain and protect places of importance under traditional laws and customs;
(l)	the right to transmit traditional knowledge to members of the native title claim group including knowledge of particular sites; and
(m)	the right to hold meetings.
Note:	These rights include rights and interests incidental to the native title rights as expressed. For the removal of doubt, rights (i) and (l) may, where appropriate, be exercised outside the native title area.

General Qualifications on Native Title Rights and Interests

14.        Native title does not exist in:

(a)	minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2016 (NSW); and
(b)	petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW) and the Petroleum (Offshore) Act 1982 (NSW).

15.        The native title rights and interests described in paragraph 13 do not confer:

(a)	any right of possession, occupation, use and enjoyment of the land or waters in the native title area to the exclusion of all others; and
(b)	any right to control public access to or use the land or waters in the native title area.

16.        The native title rights and interests in relation to the land or waters in the native title area are subject to and exercisable in accordance with:

(a)	the laws of the State of New South Wales and of the Commonwealth;
(b)	the traditional laws acknowledged and traditional customs observed by Widjabul Wia-bal; and
(c)	the terms and conditions of the agreements referred to in Schedule Four (agreements).

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521	v
The Nature and Extent of Any Other Interests

17.        The other interests in relation to the native title area are described in Schedule Five (other interests in the native title area).

Relationship between Native Title Rights and Interests and Other Interests

18.        Subject to paragraphs 19, 20 and 21, and except as otherwise provided by law, the relationship between the native title rights and interests in relation to land or waters in the native title area and the other interests, described in Schedule Five (other interests in the native title area), in relation to those areas is that:

(a)	the other interests continue to have effect;
(b)	the other interests co-exist with Widjabul Wia-bal’s native title;
(c)	Widjabul Wia-bal do not have the right to control access to or the use of the land or waters by the holders of the other interests; and
(d)	to the extent of any inconsistency, the other interests and any activity that is required or permitted by or under the exercise of a right conferred or held under the other interests, while they are in existence, prevail over but do not extinguish native title and any exercise of those native title rights and interests.

19.        The relationship between the native title rights and interests in relation to the land or waters in the native title area, being:

(a)	Part 1.1 (Crown land in the native title area) of Schedule One (native title area);
(b)	Part 1.2 (the national park estate in the native title area) of Schedule One (native title area); and
(c)	Part 1.3 (State forests in the native title area) of Schedule One (native title area);

and

(d) the Aboriginal Land Council interests set out at Item 1(a) of Schedule Five (other interests in the native title area),

is that the Aboriginal Land Council interests continue to have effect.

20.        The relationship between the native title rights and interests in relation to the land or waters in the native title area being:

(a)	Part 1.1 (Crown land in the native title area) of Schedule One (native title area);
(b)	Part 1.2 (the national park estate in the native title area) of Schedule One (native title area); and

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 vi

(c)	Part 1.3 (State forests in the native title area) of Schedule One (native title area);
and
(d)	the Aboriginal Land Council interests set out at Item 1(b) of Schedule Five (other interests in the native title area);
is that:
(e)	pursuant to section 36(9) of the Aboriginal Land Rights Act 1983 (NSW), the Aboriginal Land Council interests shall be subject to the native title rights and interests existing in relation to the land or waters in the native title area immediately before the transfer, meaning that the native title rights and interests have full effect and may be exercised; and
(f)	the land or waters in the native title area may only be dealt with by the Aboriginal Land Council in accordance with the Aboriginal Land Rights Act 1983 (NSW) and the Native Title Act 1993 (Cth).

21. The relationship between the native title rights and interests in relation to the land or waters described in Part 1.5 (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies) of Schedule One (native title area) and the Aboriginal Land Council Interests described at Item 1(c) of Schedule Five (other interests in the native title area) is that:

(a)	the Aboriginal Land Council interests continue to have effect;
(b)	the non-extinguishment principle described in section 238 of the Native Title Act 1993 (Cth) applies to the grant or vesting of the Aboriginal Land Council interests and any prior interest in relation to the area in accordance with section 47A(3)(b) of the Native Title Act 1993 (Cth);
(c)	the native title rights and interests continue to exist in their entirety, but have no effect in relation to the Aboriginal Land Council interests;
(d)	the Aboriginal Land Council interests, and any activity that is required or permitted by or under and done in accordance with the Aboriginal Land Council interests, may be exercised and enjoyed in their entirety notwithstanding the existence of the native title rights and interests;
(e)	the native title rights and interests may not be exercised on land or waters the subject of the Aboriginal Land Council interests while those Aboriginal Land Council interests exist;

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 vii

(f)	if the Aboriginal Land Council interests or their effects are wholly removed or otherwise wholly cease to operate the native title rights and interests again have full effect; and
(g)	if the Aboriginal Land Council interests or their effects are removed to an extent or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

Definitions and Interpretation

22. Aboriginal Land Council means the New South Wales Aboriginal Land Council or
any Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act
1983 (NSW) for a Local Aboriginal Land Council area, within the meaning of that Act
that is within the land and waters in the native title determination area, and includes
Ngulingah Local Aboriginal Council and Jali Local Aboriginal Land Council.
Aboriginal Land Council interests means the rights and interests set out in Item 1 of
Schedule Five (other interests in the native title area).
extinguished area means the land or waters described in Schedule Two (extinguished
area).
laws of the State of New South Wales and of the Commonwealth include statutes,
regulations and other subordinate legislation, and the common law.
native title and native title rights and interests means the rights and interests
described in paragraph 13 of the determination.
native title area means the land or waters described in Schedule One (native title area).
native title determination application means the native title determination application
filed on 24 June 2013 by the Applicant in the Federal Court and given the number
NSD1213/2018, as amended.

In this approved determination of native title, unless the contrary intention appears: (native title determination area), being the land and waters:

(a)  within the external boundary of the native title determination application, described in Part 1 (external boundaries of the native title determination application) of Schedule Three (native title determination area) excluding:

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 viii

(i)         the land and waters excluded from the native title determination application on 6 July 2022, described in Part 2 (land and waters excluded from the native title determination application on 6 July 2022) of Schedule Three; and

(ii)         the land and waters excluded from the native title determination application on 19 October 2022, described in Part 3 (land and waters excluded from the native title determination application on 19 October 2022) of Schedule Three.

native title holders and Widjabul Wia-bal means the persons described in
paragraph 12 of the determination.
natural resources includes but is not limited to animals (including mammals, birds,
reptiles, amphibians, insects, crustaceans, worms and fish), plants (including medicinal
plants, timber and tubers), charcoal, wax, stone, ochre and resin as well as food and
material for fabricating tools, hunting implements, and domestic items, and making
artwork and musical instruments.
other interests means the rights and interests described in Schedule Five (other
interests in the native title area).
Widjabul Wia-bal has the same meaning as native title holders.
Widjabul Wia-bal Gurrumbil Aboriginal Corporation means Widjabul Wia-bal
Gurrumbil Aboriginal Corporation, ICN 9856 incorporated under the Corporations
(Aboriginal and Torres Strait Islander) Act 2006 (Cth).

23.        If a word or expression is not defined in these orders or this determination of native title, but is defined in the Native Title Act 1993 (Cth), the Native Title (New South Wales) Act 1994 (NSW) or the Interpretation Act 1987 (NSW), then it has the meaning given to it in those statutes, whichever is relevant.

Note: In this version of the orders, prepared for publication on the Internet, the schedules referred to herein have not been attached but, instead, have been placed at the end of the Court’s reasons for judgment because of their length.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521	ix

REASONS FOR JUDGMENT

RARES J:

INTRODUCTION

1. Wia-bal is the name of the country of the Widjabul people of the Bundjalung nation who have been its custodians since the dreamtime. Widjabul Wia-bal country includes Lismore, near where the Court is sitting, and, to the north, Nimbin. It has taken many years of struggle for the Widjabul people to achieve the legal recognition of their historical native title rights and interests in Wia-bal country by the Commonwealth, the State of New South Wales and the Australian community that the Court will determine today.

2. The area covered by this determination is bounded to the south by Bagotville, Tuckean Nature Reserve and Tucki Tucki, to the west by Bungabbee State Forest and Cawongla, to the north by the Mebbin State Forest, Lillian Rock and a large portion of Nightcap National Park, and to the east by Montecollum, Possum Creek and Alstonville.

3. The Widjabul Wia-bal have an important traditional practice to “sing out” when visiting sacred jurbihl sites. They do this to ensure their safety and obtain assistance from the spirits of ancestors that are connected to their own bloodline. Some jurbihl sites can only be visited by certain members of the tribe.

4. There are burial sites close to Nimbin, near Nimbin Rocks. In her anthropological report, Natalie Rugiano wrote that Nimbin Rocks had an association with a “little man called Nyimbunje who was thought to have supernatural powers”. Desmond Morrissey, a member of the claim group, said there was an initiation area around Nimbin Rocks and a little man, a nimbinj, was there. He said that the town of Nimbin got its name because the European settlers could not pronounce “nimbinj”. In her affidavit, Thelma Crummy, another member of the claim group, said that when her grandmother, who had been initiated, “felt like a feed of porcupine”, she sang out to the nimbinj, whom she described as “the hairy man”.

5. The anthropological evidence supports the view that, at the time of initial contact with Europeans in the first two decades of the 19th century, the traditional owners had allowed escaped convicts to live with them on the determination area. At that time, the area was heavily forested with jungle and large stands of cedar trees, that later settlers felled, with help of local Aboriginals, who also acted as guides, drivers and rafters. However, that relatively peaceful

   Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 1

interaction turned later into dispossession of the traditional owners, accompanied by,
sometimes, fatal violence.

1. Many Widjabul have personal associations with the Cubawee Mission or Reserve, where the Aboriginal Protection Board forced many of their family members to live from about the 1930s. Cubawee means a place of full and plenty. However, the Board caused children living at Cubawee Mission to be taken involuntarily from their parents in a practice that inflicted unspeakable trauma suffered by those in the stolen generation and their families in the Bundjalung nation and elsewhere in Australia.

2. Nonetheless, perhaps inspired by this oppressive conduct, one of the elders at Cubawee, Pastor Frank Roberts, began a determined quest for recognition of first nations people’s rights. On 4 September 1940, he convened, with his father, Lyle, and son, Frank junior, the first Cubawee Christian Convention that brought Aboriginal people together from all over New South Wales. The convention met for several days and nights. The pastor said that the convention was “for the deepening of spiritual life”. But when church activities finished, as his nephew, John Roberts, recalled, “all of the old men … sat there … talking about land rights”.

3. Another important Widjabul Wia-bal site is the bora ring at Tucki Tucki which still survives. It is there that Lyle Roberts Senior came to be the last initiated Widjabul man in a ceremony that occurred in the 1890s. The rite of initiation was performed on a young man who was transitioning to manhood and included his being tattooed. The process involved the young man being taken into the bush by elders. His skin was cut in the pattern of the tattoo that had been drawn on him earlier, and the men would fill the cut with clay so that the tattoo would heal without closing up so as to form an enlarged scar. The healing process seems to have taken weeks. According to a settler at the time, William Flick, in his book A Dying Race, the purpose of the tattoo scar was so that, in time of war, it could be painted with coloured clay to give the warrior a ferocious appearance.

4. The grandson of Lyle Roberts, the late Murray John Roberts, more affectionately known as Uncle Goongie, who passed away earlier this year and was the first named member of the applicant for this determination, said that his grandfather had told him that the bora, or initiation ring, “is a symbol of never-ending life”.

5. The land where the Lismore Showground now is was an important meeting place for Aboriginal peoples to resolve their differences. William Flick also wrote of a large and famous

   Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 2

   ritual bullen bullen, or corroboree, that occurred there in the 1870s. On that occasion, about 500 local Lismore warriors and a similar number from the Tweed region engaged in a ritual war game to settle whether a young prospective groom from one tribe, who had interfered with a pre-arranged engagement within the girl’s tribe, would be allowed to marry her as someone from the other tribe. There was a fight between the two suitors for the girl, not to the death, but following rules to decide the better warrior. After the battle phase of the ritual was over and a winner announced, the two tribes would have a marriage feast and engage in prolonged celebrations.

6. These are some examples of material in the evidence that support the existence of an historical, spiritual connection of Widjabul people to Wia-bal country dating from before European settlement.

   THE APPLICATION

7. On 24 June 2013, the applicant, on behalf of the Widjabul Wia-bal people, filed a Form 1 commencing this claimant application for a determination of native title under s 61 of the Native Title Act 1993 (Cth). The applicant named in the most recently amended Form 1, filed on 12 December 2022, consists of the same 10 members as in the original Form 1. Regrettably, this year, the first named member of the applicant passed away and the third named member, June Gordon, had lost mental capacity to make decisions.

8. In Widjabul Wia-bal v Attorney-General of New South Wales [2022] FCA 1187 at [6]–[56], Jagot J traced the history of this proceeding (that now has the file number NSD1213/2018 because it was converted from a paper to an electronic court file in 2018). I adopt her Honour’s description of the history and findings in those paragraphs. Her Honour noted that, in November 2001, members of the Widjabul Wia-bal people had commenced their original proceeding for a determination of native title in respect of the claim area. That proceeding was discontinued in 2012 so that the present proceeding could be brought. This happened after a mediation of claims by numerous interested persons who resolved to bring the new, consolidated application. Her Honour observed (at [56]):

   Before dealing with the evidence, I record that any person who has been involved in native title litigation knows that enormous time, cost, and effort is involved in: (a) every mediation, (b) every meeting of the members of any claim group, and (c) every claim group meeting. This is to say nothing of the enormous time, cost, and effort involved in navigating the decision making processes concerning native title in NSW, which involves a multiplicity of NSW Departments and agencies. The public investment of the Commonwealth (as the funder of NTSCORP) and NSW in

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 3

this matter since 2001 must be extraordinary. The amount of Court time and effort
(particularly Registrar time and effort) also should not be overlooked.

1. On 6 July 2022, 19 October 2022 and 12 December 2022, the applicant amended the Form 1 to excise 253 parcels of land from it and describe some parcels more accurately. These deletions were needed because, first, the parties could not agree about whether native title continues to exist in 178 parcels and have deferred the resolution of that dispute and, secondly, they agreed that, in a consent determination that the Court will make in the future, native title in another 75 parcels will be recognised as a result of the recent amendment of the Act that added s 47C (the s 47C areas). That amendment enables parties to agree to ignore historical extinguishment of native title so as to treat it as having always existed in national parks and other reserves where a Government agrees to this occurring. The s 47C areas could not be included in this determination because the parties will need more time to prepare the relevant documentation. In addition, the three land councils have claims under s 36 of the Aboriginal Land Rights Act 1983 (NSW) over some of the parcels in which native title exists that will be able to be determined under the State Act.

2. This left about 27,600 parcels of land in the determination area, covering about 1,559.6 square kilometres. The proposed determination will specify those parcels in which native title continues to exist and 25,856 parcels of freehold in which it has been extinguished. That will give both the Widjabul Wia-bal people and the wider community certainty from now on about those portions of the land and waters in the claim area over which the traditional owners will be able to exercise their determined non-exclusive native title rights and interests.

   THE S 87 AGREEMENT

3. On 16 November 2022, the solicitors for the applicant, the Attorney-General on behalf of the State of New South Wales, NTSCORP Limited, Byron Shire and Lismore City Councils, the New South Wales, Jali Local and Ngulingah Local Aboriginal Land Councils (the three land councils), Telstra Corporation Limited, Transgrid and Amplitel Pty Ltd filed a signed an agreement under s 87 of the Native Title Act (the s 87 agreement). The parties subsequently identified a small number of typographical or minor errors and on 14 December 2022 caused to be filed an amended version of the executed copy of the s 87 agreement.

4. The s 87 agreement contained orders reflecting a consent determination that the parties asked the Court to make today by consent. The consent determination will confirm that the Widjabul Wia-bal people have non-exclusive native title rights and interests in particular land and waters

   Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 4

   within the original claim area. Those non-exclusive rights include the rights to access, move about, traverse, camp temporarily, conduct and participate in ceremonial, ritual and spiritual activities on the relevant land and waters. Those rights also include the rights to maintain and protect places of importance under traditional laws and customs as well as the right to gather, use and exchange, including with neighbouring native title groups, natural resources, and to hunt and fish for personal, domestic, communal, cultural and non-commercial purposes.

5. The consent determination will also reflect that native title has been extinguished in areas of freehold land that cover a large part of the claim area.

6. The s 87 agreement provides that the applicant and the Attorney-General acknowledge that the Widjabul Wia-bal Goori naa Land Use Agreement ILUA, including their commitment in that indigenous land use agreement (ILUA) to make a further agreement in respect of the s 47C areas, and the s 87 agreement itself, represent full and final settlement of the compensation liability of the Government of New South Wales under the Act in relation to the determination area and any future native title determination application in respect of the determination area.

   THE LEGAL CONTEXT

7. A consent determination like this is a very important proceeding. It establishes for the whole Australian community that an indigenous people has legally enforceable native title rights and interests over the land and waters that it covers. I have summarised some of the important matters involved in a consent determination in earlier decisions and will draw on those in what I now say: see, eg, Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 at [4]–[6].

8. The recognition and protection of native title by our nation’s common law in the landmark decision of Mabo v State of Queensland (No 2) (1992) 175 CLR 1 and by the Parliament of the Commonwealth when it passed the Act enabled first nations peoples and their descendants to satisfy the very human desire to identify with, enjoy and feel a part of their cultural heritage on land and waters with which they have, and feel, a spiritual and emotional connection. When the Court makes an order for a determination of native title, it exercises the judicial power of the Commonwealth, on behalf of the whole of the Australian community, to recognise the indigenous claimants’ rights and interests as having the force of law in both societal systems: cf Long v Northern Territory of Australia [2011] FCA 571 at [6] per Mansfield J.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 5

1. A determination by the Court that native title exists serves many important purposes, as the preamble to the Act acknowledges. These include the recognition of the entitlement of indigenous Australians to enjoy rights and interests in their land and waters, in accordance with their peoples’ traditional laws and customs. Those rights and interests were not previously recognised by the common law, following European settlement and the displacement and frequent dispossession of our first nations people.

2. The Court has not had a hearing of the applicant’s claim on its merits. Even so, the Court has an important power to make a determination that native title exists over land and waters under s 87 of the Act once all of the parties have signed a written agreement and provided that certain other conditions are met.

3. In these proceedings, the Attorney-General, as the responsible Minister of the State, has consented to the making of the determination of native title. However, before the Court can make the orders recognising native title, it must be satisfied that the consent determination has been reached after proper consideration by the parties, particularly the State, of all of the matters that the Act requires be established. This consensual process depends upon the executive Government of each State and Territory in whose jurisdiction the claim is made taking an active role in the litigation. The Government must scrutinise carefully any claim for native title in order to seek to protect the interests of the whole community that it represents: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at 115 [29] per Emmett J.

4. I will now deal with the legal and factual issues that I must decide in order to make the consent determination. Under ss 87(1A) and (2) of the Act, the Court has a special power, without a hearing, to make an order to recognise native title rights and interests in, or consistent with, the terms of the parties’ agreement if it appears to the Court to be appropriate to do so. The power must be exercised having regard to the beneficial purpose of the Act and its moral foundation that is declared in the words of its preamble: Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 at 461 [63] per Wilcox, French and Weinberg JJ.

5. In making a determination that native title exists, even by consent and without a hearing, the Court must set out details of the matters mentioned in s 225: Native Title Act s 94A. Relevantly, s 225 provides:

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 6

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)	who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)	the nature and extent of the native title rights and interests in relation to the determination area; and
(c)	the nature and extent of any other interests in relation to the determination area; and
(d)	the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)	to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Note:	The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.

1. Accordingly, if the Court is asked to make a consent determination, it must be satisfied that there is sufficient evidence before it that would make it appropriate to do so. However, it is not necessary for the parties to tender evidence as if they were still contesting the proceedings. That is not the purpose for which such evidence is required. Rather, as a former Chief Justice of Australia explained, it may be necessary to reassure the Court that a proper basis exists for the determination because “… the agreement is rooted in reality”: The Hon R S French AC, Native Title – A Constitutional Shift?, published in: H P Lee and P Gerangelos (eds), Constitutional Advancement in a Frozen Continent: Essays in Honour of George Winterton (The Federation Press, 2009) pp 126–154.

2. What evidence will be sufficient will vary from case to case, but it must show that the orders have a substantive and real foundation. Anthropological evidence is often tendered so as to assist the Court in arriving at this degree of satisfaction. Evidence is relevant for the Court to satisfy itself that the parties had a real basis to arrive at their consent. Indeed, in the first place, because of its cogency, the same evidence is likely to have induced the respondents, especially the Government, to consent to the making of the determination of native title.

3. Nonetheless, I must still be satisfied that the parties’ agreement to recognise the Widjabul Wia- bal people’s native title rights and interests would be within the power of the Court (s 87(1)(c)).

   Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 7

   THE DESCRIPTION OF THE CLAIM GROUP

4. In the course of preparing the Widjabul Wia-bal people’s case, the applicant decided that, based on their traditional laws and customs, together with supporting evidence of the late Murray Roberts and anthropological evidence from Simon Correy, an anthropologist employed by the representative body for the claim, NTSCORP, that it was necessary to amend the description of the persons who hold common law native title rights and interests in Wia-bal Country from that used in the Form 1.

5. Mr Correy opined that his research and interviews with Widjabul Wia-bal persons disclosed that the Widjabul Wia-bal people’s traditional laws and customs as to membership included two processes by which persons who were not bloodline descendants of members of the tribe could become a member with the same rights and duties as a bloodline descendant. The first method was a practice of “rearing up”. That equated to a practice of adoption of persons into the tribe who could not trace their ancestry to descent from any of the seven apical ancestors named in the Form 1. The system of rearing up or adoption involves a person being brought up by persons who do have Widjabul bloodline descent from one or more of the apical ancestors. The second process was that a person who did not have such a bloodline descent could also be “incorporated” into the Widjabul Wia-bal people. Mr Correy said that the traditional laws and customs operated to recognise, as a member of Widjabul Wia-bal society, a non-descendant and unrelated person, through ritual, ceremony, possession of cultural knowledge and or long-term residence within Widjabul Wia-bal country. Mr Correy opined that a person could be “incorporated” under the traditional laws and customs if, first, he or she was closely associated with Wia-bal country through having a long-term physical association with Wia-bal Country, secondly, the person acquired sufficient knowledge and cultural responsibility for the land and waters thirdly, he or she self-identified as Widjabul Wia-bal and, fourthly, Widjabul Wia-bal persons generally accepted him or her as Widjabul Wia-bal.

6. As I will explain later, the applicant sought and obtained authorisation, under ss 251B and 251A of the Act, from meetings in August 2022 of members of the claim group, first, as originally constituted by persons with bloodline descent from one or more of the seven apical ancestors in the Form 1 and, secondly, from the expanded description of the claim group as including persons who were adopted or incorporated, for the applicant to enter into:

(a)	the consent determination; and
(b)	what was then proposed to be an ILUA and is now the ILUA.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 8

1. The amendment would change the current description of the common law holders of the native title rights and interests of the Widjabul Wia-bal people in the Form 1 to the expanded description which reads as follows (by adding the words emphasised below):

   Native title in relation to the native title area is held by Widjabul Wia-bal who comprise all the descendants of the following apical ancestors:

(a)	Bob de Bobbin (also known as Bob Deruhbin), died 1912 at Lismore;
(b)	Topsy Brown (also known as Topsy Larken), born 1849, died 1919 at Dunoon;
(c)	Johnny Bob (also known as Bob Roberts), born circa 1820;
(d)	William “Billy” King, born 1878 at Lismore;
(e)	George Williams, born 1870;
(f)	Kitty Barry, born 1841, died 1911 at Blakebrook; and
(g)	John “Jack” Kapeen (also known as John “Jack” Capeen), born circa 1860;

including persons adopted or incorporated into the families of those persons and who identify as, and are accepted as, Widjabul Wia-bal in accordance with Widjabul Wia-bal traditional laws and customs (and the biological descendants of those adopted or incorporated persons).

1. In Widjabul [2022] FCA 1187 at [79]–[81], Jagot J inferred, based on evidence that Mr Correy gave to her Honour, that there was credible evidence that the expanded description for claim group membership was appropriately identified in the proposed consent determination for the purposes of s 225(a) of the Act.

2. Her Honour also dismissed an application by Cindy Roberts, a member of the claim group, to be joined as a party under s 84(5) so that she would be able to withhold giving consent to the proposed consent determination. She had wanted to challenge the expanded description. Jagot J found that Ms Roberts should not be made a party on the basis that at properly convened authorisation meetings held under s 251B of the Act, in and from 2013, including the first and second meetings held on 19 August 2022 (to which I refer below), the claim group had decided what was the appropriate description of its membership and to authorise the applicant to proceed with the s 87 agreement, including the consent determination, as it has (at [81]).

   THE PARTIES’ SUBMISSIONS

3. The applicant and the State have made detailed joint written submissions in support of the proposed consent determination.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 9

Jurisdictional issues

1. The joint written submissions raised two possible jurisdictional issues that might bear on whether the Court can make the proposed consent determination. Those were whether, first, the applicant could continue to prosecute the application because of the death and incapacity of two of its members named in the Form 1 (the capacity issue) and, secondly, the description of membership of the claim group in the Form 1 was different from, and narrower than, the expanded description used in the proposed consent determination (the description issue).

   Consideration – The capacity issue

2. There is no evidence that the Widjabul Wia-bal claim group’s earlier authorisation of the applicant under s 251B to make and deal with matters arising in relation to this application would be affected by the death or incapacity of any of the members who comprise the applicant. As North, McKerracher and Jagot JJ explained, in FQM Australia Nickel Pty Ltd v Bullen (2011) 191 FCR 261 at 269–274 [26]–[40], s 66B (in its then form) provided that, despite the death of one or more or all members of a current applicant, the authority of the registered native title claimant (defined in s 253 as, relevantly, the “person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters”) continued until that applicant was replaced in accordance with the mechanisms for which ss 66B and 251B of the Act provided (see at 269–270 [28], 270–271 [31]–[32]).

3. In 2021, the Parliament amended s 66B to add s 66B(2A)–(2C). Those amendments confirmed that, unless the authority of any continuing members of a current applicant ceased on the death or physical or mental incapacity of any member included in the membership of the applicant, its members, who were still living and had capacity, continued to be able to act as applicant. The amendments to s 66B and also to s 253 (which added a reference to s 66B(2C) to the definition of “applicant” in s 253) applied to then existing, as well as future, applications to this Court under s 66B regardless of when a death or incapacity occurred (see Item 62 in Sch 1 to the Native Title Legislation Amendment Act 2021 (Cth)).

4. In those circumstances, the death of one member and the incapacity of another does not affect the authority that s 251B of the Act conferred on the remaining living members of the applicant with capacity to prosecute this application, enter into the s 87 agreement and seek the consent determination.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 10

Consideration – The description issue

1. The expanded description of the claim group in the proposed consent determination specifies, for the purposes of s 225(a), who are the holders of the common or group native title rights and interests under it. The Act does not expressly require that an application for a determination of native title under s 61(1) must describe those holders in the same terms as they will be described in the determination when made pursuant to s 225(a).

2. The applicant and the Attorney-General submitted that the disconformity between the description in the Form 1 of the persons who hold native title rights and interests and that in the proposed consent determination did not affect the Court’s power to make a determination in the terms proposed.

3. Under s 61(5)(a) of the Act, an application, including a claimant application for a determination of native title, must be in the prescribed form. The Native Title (Federal Court) Regulations 1998 (Cth) prescribe the detail that must be given in Form 1 in a claimant application such as the present (reg 5(1)(a)). Part A in Form 1 as prescribed in the Regulations requires that:

   3. The schedules to this application contain the following information:
   Schedule A [see Act, s 61]

   The names (including Aboriginal names) of the persons (the native title claim group) on whose behalf the application is made or a sufficiently clear description of the persons so that it can be ascertained whether any particular person is 1 of those persons.

4. Similarly, Sch E of the prescribed information requires a description of the native title rights and interests claimed in relation to the particular land and waters. The prescriptions in the other schedules in Form 1 are also directed to giving notice of the nature of the claim in a similar, but by no means identical, way to a pleading. In addition, s 62 of the Act requires a claimant application to contain particular details specified in s 62(2) and to be accompanied by an affidavit sworn by the applicant stating the matters in s 62(1A). Those details and matters relate to the determination sought in the Form 1 in respect of the native title claim group, being the group defined in the table in ss 61(1) and 253 as “all the persons … who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed”. And s 61(4) provides:

   A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 11

(a)	name the persons; or
(b)	otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

(emphasis added)

1. Accordingly, s 61(4) requires a Form 1 to name or give a sufficiently clear description of the persons who authorised its filing (under s 251B). The Form 1 has the functions, first, to initiate in the Court a claimant application for a determination of native title, and, secondly, to be given to the Native Title Registrar with accompanying affidavits for the Registrar to notify its making in accordance with the Act. After the Registrar receives the Form 1 and accompanying affidavits, the Registrar must give copies of them to the relevant State and or Territory Ministers and representative bodies under s 66(2) and (2A). Once the Registrar decides under s 190A to accept the Form 1 for registration, the Registrar must also give notice of the details in it and the matters prescribed in s 66(10) to the persons specified in s 66(3).

2. Thus, while ss 61–66 of the Act prescribe numerous matters relating to the contents of a claimant application (or Form 1), the Act does not evince a legislative intention that prohibits any departure from the description in it of the holders of the common or group native title or of the rights and interests claimed when the Court makes a determination of native title in the form that ss 94A and 225 prescribe.

3. Rather, ss 94A and 225 require the Court to set out the details of what the Court determines (that is: finds) is the native title that exists in relation to a particular area and the matters that ss 94A and 225 require the determination to state. A determination under s 225 can be made whether or not an applicant proves at a trial all of the matters particularised in that applicant’s Form 1. Neither the Act, nor the Native Title (Federal Court) Regulations requires any defence or specific response to a Form 1. The Act does not constrain the Court to find that any matters contained in a Form 1 or other form have been proved or established to any extent. Rather, ss 94A and 225 require the Court to set out the details of its findings in respect of the four matters identified in s 225, as opposed to matters that may have been identified in the claimant application.

4. This approach reflects the common law position that pleadings must state the case of each party with sufficient clarity, but are only a means to the end of ensuring that each party knows the case to be met, as Isaacs and Rich JJ explained in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517–518. They held that where the parties led evidence and fought the trial without objection on a basis outside the pleaded case, the

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 12

departure from the pleadings did not affect the result. As their Honours said (at 518), “any objection raised could have been instantly met by a formal amendment”: see too Dare v Pulham (1982) 148 CLR 658 at 664 per Murphy, Wilson, Brennan, Deane and Dawson JJ.

1. A determination of native title has an in rem character. Thus, once the notification process in s 66 that the Act mandates has occurred, ordinarily, all persons with an interest in the relevant land and waters will be aware of the claimant application and can appear in the proceeding if they choose or if they apprehend that their rights or interests may be affected. Similarly, s 66A of the Act only requires the Registrar to notify amendments to a claimant application under s 64 that result in a change in the area of land and waters covered in the application that was amended. However, the Act does not make a similar requirement for notification of a change in the proposed description of the common or group holders of the native title. No doubt, that is because of the in rem character of a determination, namely, its resolution of the status of the land and waters and the need for persons who may have rights or interests in that area to be able to know, before a determination is made, that the Court is dealing with a claimant application that, if granted, will change the status of the whole or part of the area covered by it.

2. In Billy Patch and others on behalf of the Birriliburu People v State of Western Australia [2008] FCA 944 at [18], French J held that, provided a claimant application were valid, the Court can make a determination, including a consent determination, in such a form as it sees fit based on the evidence. There, the description omitted any reference to the descendants of 181 persons named in the Form 1 (see at [17]). A similar approach has been applied in numerous other consent determinations: see eg Eaton on behalf of the Nyamal People (No 10) v State of Western Australia [2019] FCA 1571 at [25] per Reeves J; Mouda on behalf of the Joombarn-Buru Native Title Claimants v State of Western Australia [2021] FCA 1233 at [14]–[15] per McKerracher J; Mulligan on behalf of the Warlangurru Claim Group v State of Western Australia [2022] FCA 845 at [9] per Banks-Smith J. French J held that the Court “was not limited to making a determination in the form sought in the application”. There, the applicant and the State agreed (as here) that the description of the native title claim group in the Form 1 did not appropriately describe the persons who held the common or group rights comprising native title and, accordingly, that the consent determination should contain a different, more accurate, description.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 13

1. For these reasons, I am satisfied that it is within the power of the Court to make the proposed consent determination in its present form with the expanded description of the holders of the common or group native title.

   THE EVIDENCE IN SUPPORT OF THE S 87 AGREEMENT

2. The applicant relied on affidavits of:

(1)	Sarah Bartrim, a solicitor at NTSCORP, the representative body, with day-to-day responsibility for the consent determination, made on 18, 22 and 23 November 2022;
(2)	Dr Michael Bennett, a research historian at NTSCORP, made on 18 November 2022;
(3)	Natalie Rotumah, the chief executive officer of NTSCORP, made on 25 November 2022;
(4)	Matilda Vaughan, made on 24 November 2022; and
(5)	Mishka Holt, the principal solicitor of NTSCORP, made on 24 November 2022.

1. The applicant ultimately tendered reports by Mr Correy and Ms Rugiano, both being anthropologists employed by NTSCORP.

2. The Attorney-General relied on affidavits of Sophia Illiadis, a solicitor in the employ of the Crown Solicitor, made on 18 and 22 November 2022. Ms Illiadis explained the detailed consideration that the Attorney-General had given to the evidence and material provided by the applicant and available to the State through its own investigations, including of land tenures in the claim area, and advice from the Crown Solicitor and many opinions by senior and junior counsel. Ms Illiadis explained that the State had satisfied itself, based on that material and its legal advice, that it was appropriate for the State to agree to the Court making the consent determination.

   AUTHORISATION

3. Ms Bartrim described the background to the parties entering into the signed s 87 agreement.

4. On 22 July 2022, Ms Bartrim (along with Ms Rotumah and Ms Vaughan) caused notices to be given for the following three meetings under ss 251B and 251A of the Act) to seek authorisation of:

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 14

(1)	the s 87 agreement by the claim group as described in the Form 1, including to expand the description of the claim group to that in the expanded description of the claim group (the expanded group) under s 251B (the first meeting);
(2)	the s 87 agreement by that expanded group under s 251B (the second meeting); and
(3)	an ILUA by the expanded group together with any other Aboriginal person who asserted native title rights and interests in the area under s 251A (the third meeting).

1. The notices for the first and second meetings set them for 19 August 2022 at 9 am and 3:30 pm respectively at the Lismore Heights Bowling Club. The notices for each meeting identified respectively the compositions of the claim group in the Form 1 and the expanded group, as well as the proposed consent determination area. The notice for the third meeting set it for 9 am to 5 pm on both 20 and 21 August 2022 at the Club and was addressed to the expanded group.

2. At the same time that NTSCORP staff sent the notices referred to at [57], they also circulated a “save the date” of 22 August 2022 for a meeting of the expanded group to seek the nomination, in accordance with s 56(2)(a) of the Act, of a prescribed body corporate (PBC) (that, by the time of the third meeting, was identified as Widjabul Wia-bal Gurrumbil Aboriginal Corporation) to hold, on trust for the Widjabul Wia-bal people, the native title rights and interests to be recognised by the consent determination, to establish the Corporation, for it to accept its nomination as trustee of the Widjabul Wia-bal’s native title rights and interests and to sign the ILUA (the PBC meeting).

3. Ms Bartrim caused the notices of the first, second and third meetings to be advertised in the Koori Mail edition of 27 July 2022, and she and other NTSCORP staff arranged for notices of each meeting and the “save the date” for the PBC meeting to be sent to the 255 persons known to NTSCORP as members of the Widjabul Wia-bal people whose addresses it maintained on its mailing list.

4. On 9 August 2022, Ms Bartrim (along with other NTSCORP staff) caused notices of the PBC meeting to be sent to the 255 persons on NTSCORP’s mailing list.

5. The agenda for the first meeting provided for it to, first, update attendees on the proposed consent determination, secondly, confirm a decision-making process for the meeting to follow, thirdly, consider and make decisions to authorise the applicant to amend the Form 1 to remove certain parcels from the claim area and, fourthly, authorise the applicant to enter into

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 15

the s 87 agreement and proposed consent determination that would remove certain parcels of
land from the claim area.

1. The agenda for the second meeting provided for it to, first, confirm a decision-making process to follow and, secondly, authorise the applicant to enter into the proposed s 87 agreement and consent determination.

2. The agenda for the third meeting provided for it to, first, give an overview of the ILUA and the negotiations for it and, secondly, consider and make decisions in relation to the authorisation of the ILUA.

3. The agenda for the PBC meeting provided for it to, first, give information about and discuss the role of a PBC, secondly, confirm a decision-making process for establishing the PBC, thirdly, establish it under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) and, fourthly, for members of the PBC to consider and make decisions in relation to it accepting its nomination to act as the trustee of the native title rights and interests of the claim, group, as then constituted, in the amended claim area and to sign the ILUA. That agenda enclosed a draft rule book for a PBC.

4. Each notice requested persons proposing to attend to register in advance of the meeting and advised that NTSCORP would consider providing financial assistance to persons who needed it to attend the meetings.

5. I am satisfied on the evidence that the notice of each of the first, second, third and PBC meetings was sufficient, given appropriately and that NTSCORP financially assisted those members of the claim group who needed such assistance.

   The s 87 agreement and ILUA are authorised

6. About 40 members of the Widjabul Wia-bal people attended the first meeting. Counsel for the applicant, Dr Angus Frith, outlined the background on the progress of the claim, explained the terms of the proposed consent determination and s 87 agreement and, together with Ms Bartrim, answered questions. The meeting resolved unanimously that the applicant be authorised (under s 251B) to enter into the proposed s 87 agreement in the terms reviewed at the meeting, that included the expanded description of the claim group and to make further minor drafting amendments to the form of the s 87 agreement and proposed consent determination as necessary to ensure that the consent determination could be made. The meeting also resolved that the applicant and the applicant’s legal representatives be authorised

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 16

to execute and file a copy of the s 87 agreement and proposed consent determination (as
amended if necessary) with the Court.

1. At the second meeting held shortly after the conclusion of the first meeting, about 30 persons attended and agreed that they were within the expanded description of the claim group. Dr Frith explained the reasons for conducting the two authorisation meetings. After Ms Holt asked whether any persons were present who had not attended the first meeting, no one indicated that they had not been present at the first meeting. The second meeting passed unanimously resolutions to the same effect as the first meeting, thus authorising, under s 251B, the applicant to enter into the s 87 agreement and progress it so that the Court could make the consent determination.

2. At the third meeting, on 21 August 2022, about 40 persons present unanimously authorised, under s 251A of the Act, the making of the ILUA in the terms reviewed at that meeting and instructed the applicant to make any minor amendments and to insert a final version of the reported annexures, maps and descriptions necessary to ensure that it would be capable of registration in the Register. The third meeting resolved to nominate and instruct the majority of the applicant to become parties to the ILUA on behalf of the Widjabul Wia-bal people, to perform the functions of the applicant under the ILUA and execute a deed of assignment with the PBC, that by then was proposed to be the Corporation, under which the soon to be former applicant would cease to be a party to the ILUA.

   The PBC accepts the nomination

3. On 22 August 2022, the PBC meeting occurred at the Club. About 60 members of the expanded group attended. Ms Holt gave legal advice to the meeting about nominating a PBC to hold the claim group’s native title on trust for the benefit of the Widjabul Wia-bal people. The meeting resolved by 64 votes to 1 to nominate the Corporation to hold the native title under the proposed consent determination in trust for the Widjabul Wia-bal people.

4. Queenie Speeding and Reginald King, two members of the applicant, subsequently signed the nomination of the Corporation under s 56(2)(b) of the Act to hold the native title on trust for the Widjabul Wia-bal people.

5. A further meeting at the Club, on 22 August 2022, established the Corporation, adopted the proposed rule-book for the Corporation, including its definition of the membership of the Corporation, being the expanded description of the claim group, appointed seven members of

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 17

the expanded group, including some members of the applicant, as directors of the Corporation. The Corporation agreed to hold, on trust for the common law holders, the native title rights and interests of the Widjabul Wia-bal people the subject of the proposed consent determination.

1. Subsequently, Tracy King and Gemma Roberts, who had been elected as directors of the Corporation signed an acceptance of its nomination as trustee of the Widjabul Wia-bal’s native title rights and interests, it being appointed as the PBC and performing the functions of a prescribed body corporate for the purposes of s 57(1) of the Act.

2. I am satisfied on the evidence, in accordance with s 56(2)(b) of the Act, that the Corporation has been authorised by the Widjabul Wia-bal people, being the common or group holders of their native title, to hold the native title on trust for them.

3. On 17 November 2022, NTSCORP lodged the executed ILUA for registration with the National Native Title Tribunal.

   DELAYED COMMENCEMENT

4. The applicant and the State seek the following orders providing that the proposed consent determination take effect on the date that the ILUA is registered on the Register under s 199B of the Act:

   3.           The determination of native title takes effect upon the date on which the agreement referred to in paragraph 1 of Schedule Four (agreements) is registered on the Register of Indigenous Land Use Agreements, pursuant to section 199B of the Native Title Act 1993 (Cth).

   4.           In the event that the agreement referred to in Order 3 above is not registered on the Register of Indigenous Land Use Agreements on or before 18 December 2025, or at such later time as this Court may order, the matter is to be listed before the Court for a case management hearing.

5. They submitted that s 87(5) of the Act supported the Court’s power to defer the operation of the consent determination once made. In Cashmere on behalf of the Jirrbal People No 1 v Queensland (2010) 283 ALR 610, Dowsett J made a similar order by consent without discussing the issue of whether the Court had power to, or should, make such an order. In many other decisions, the Court also has made orders deferring the operation of a consent determination without giving reasons. The Court has an undoubted inherent power, as a superior court of record, and express statutory power, to stay the operation of any order that it makes (see ss 5 and 23(2) of the Federal Court of Australia Act 1976 (Cth)).

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 18

1. In substance, the proposed orders 3 and 4 operate as a stay. In my opinion, the submissions that they are orders that involve matters other than native title under s 87(5) is misconceived. The orders relate directly to native title by deferring the date on which the order, being the determination, takes effect so as to vest native title in, first, the common or group holders in the expanded definition and, secondly, the Corporation on trust for them.

   CONCLUSION

2. Having reviewed the evidence before me, I am satisfied that there is a credible basis to conclude that it is appropriate for the Court to exercise the power under s 87(1A) and (2) to make the consent determination in the terms that the parties propose. For these reasons, it is appropriate to make the consent determination under s 87 of the Native Title Act in the amended terms that the parties have agreed. It is important to understand that the Court is not giving anything to the Widjabul Wia-bal people today. Instead, the Court is recognising, on behalf of our nation, their ongoing traditional custodianship of, and legal rights and interests in, the land and waters as recorded in the consent determination.

3. The consent determination ensures that the Widjabul Wia-bal people’s native title in their land and waters will be protected for the future. That protection is guaranteed by both their own traditional laws and customs and the Court’s orders that it makes in exercising the judicial power of the Commonwealth under the Constitution of Australia. The struggle for this recognition has come after great effort, many hardships and past injustices. But you have seen through this process and achieved a significant result. On behalf of the Court, may I express the sincere hope that the Widjabul Wia-bal people will be able to use the consent determination and the benefits that will flow from the ILUA, when it is registered, to build a better future for all of their number past, present and future.

4. The Court congratulates the parties on achieving this resolution.

   I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.

   Associate:

Dated:  19 December 2022

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 19

SCHEDULE OF PARTIES

NSD 1213 of 2018

Applicants

Second Applicant:	REGINALD LESLIE KING
Third Applicant:	JUNE GORDON
Fourth Applicant:	MICHAEL RYAN
Fifth Applicant:	JIM SPEEDING
Sixth Applicant:	QUEENIE SPEEDING
Seventh Applicant:	ASHLEY MORAN
Eighth Applicant:	STEVEN ROBERTS
Ninth Applicant:	JENNY SMITH
Tenth Applicant:	LOIS JOHNSON
Respondents
Fourth Respondent:	JALI LOCAL ABORIGINAL LAND COUNCIL
Fifth Respondent:	NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Sixth Respondent:	NTSCORP LIMITED
Seventh Respondent:	TELSTRA CORPORATION LIMITED
Eighth Respondent:	TRANSGRID
Ninth Respondent:	NGULINGAH LOCAL ABORIGINAL LAND COUNCIL
Tenth Respondent:	AMPLITEL PTY LTD AS TRUSTEE OF THE TOWERS BUSINESS OPERATING TRUST (ABN 75 357 171 746)
Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521	20

SCHEDULE ONE (NATIVE TITLE AREA)1

1.          Subject to Schedule Two (extinguished area) of this approved determination of native title, the native title area comprises all the land or waters described in the respective tables in the following Parts:

(a)	Part 1.1 (Crown land in the native title area);
(b)	Part 1.2 (the national park estate in the native title area);
(c)	Part 1.3 (State forests in the native title area);
(d)	Part 1.4 (waters);
(e)	Part 1.5 (land or waters to which section 47A of the Native Title Act 1993 (Cth) applies); and
(f)	Part 1.6 (land or waters to which section 47B of the Native Title Act 1993 (Cth) applies);

hatched in green and depicted on the maps at Part 1.7 (maps of the native title area) of this Schedule to the extent they fall within land and waters covered by the native title determination application.

2.          To the extent of any inconsistency between the description of the land or waters in this Schedule One (native title area) and the description of the land or waters in Schedule Two (extinguished area), the description in Schedule Two prevails.

Part 1.1 (Crown land in the native title area)

Part	ID	Folio identifier	Description of part
Area	parcel

1.	2	391/728158
2.	3	390/728158
3.	6	393/728548
4.	9	382/728133
5.	20	204/755686
6.	29	1/118322
7.	34	395/728644

1 the “as at date” for the dataset in which the parties have relied on for all parcels referred to in

the consent determination is 19 November 2014.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 21

8.	48	7300/1143052
9.	54	188/728506

10.	Part	62	241/755691	The extinguished part of lot 241 in deposited plan
755691 is the parts of Tucki Canal and the smaller canal
adjacent Tucki Canal within lot 241 in deposited plan 755691 and any adjacent land necessary for or incidental to the construction, establishment or operation of the public works. The native title area is the remainder of the land within the parcel’s cadastral
boundary.
11.	75	164/728199
12.	76	155/755693
13.	78	153/755693
14.	80	117/755693
15.	Part	90	Cadastral number	The extinguished
105702592	part of cadastral number 105702592 is the road bridge and any adjacent land necessary for or incidental to the construction, establishment or operation of the public works. The native title area is the remainder of the land and waters within the parcel’s cadastral boundary.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 22

16.	111	134/728166
17.	114	135/728167
18.	115	137/728167
19.	121	139/728507
20.	126	136/728167
21.	128	110/755697

22.	Part	134	Cadastral number	The extinguished
105567162	part of cadastral number 105567162 is the road bridge and any adjacent land necessary for or incidental to the operation of the public works. The native title area is the remainder of the land and waters within the parcel’s cadastral boundary.
23.	Part	136	Cadastral number	The extinguished
105702605	part of cadastral number 105702605 is the road bridge and any adjacent land necessary for or incidental to the construction, establishment or operation of the public works. The native title area is the remainder of the land and waters within the parcel’s cadastral boundary.
24.	Part	144	251/728546	The extinguished part of lot 251 in deposited plan
728546 includes Keerrong Road, The Channon Road, and any adjacent land necessary for or

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 23

incidental to the
construction,
establishment or
operation of the
public
works.adjacent. The
native title area is
the remainder of the
land within the
parcel’s cadastral

boundary.

25.	Part	147	246/728123	The extinguished part of lot 246 in deposited plan
728123 is the northernmost part of the portion, including The Channon Tennis Court and any adjacent land necessary for or incidental to the construction, establishment or operation of the public works. The native title area is the remainder of the land within the parcel’s cadastral
boundary.
26.	150	248/728542
27.	152	220/755703
28.	154	3/833644
29.	162	254/728179
30.	Part	165	247/728157	The extinguished part of lot 247 in deposited plan
728157 is the footprints of the public works (building and grounds currently occupied by The Channon Preschool)

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 24

and the adjacent
land necessary for
or incidental to the
construction,
establishment or
operation of the
public works. The
native title area is
the remainder of the
land within the
parcel’s cadastral

boundary.

31.	Part	173	Cadastral number	The extinguished
105362687	part of cadastral number 105362687 is the road bridge and any adjacent land or waters necessary for or incidental to the construction, establishment or operation of the public works. The native title area is the remainder of the land and waters within the parcel’s
cadastral boundary.
32.	209	143/728515
33.	210	142/728515
34.	211	144/728516
35.	212	121/755711
36.	214	107/755711
37.	216	147/821601
38.	Part	221	Cadastral number	The extinguished
105317596	part of cadastral number 105317596 is the road bridge and any adjacent land or waters necessary for or incidental to the construction,

120.                   Lot 4 DP 1178608

121.                   Lot 1 DP 1181584

122.                   Lot 3 DP 1191390

123.                   Lot 1 DP 1176285

124.                   Lot 9 DP 242199

125.                   Lot 11 DP 253467

126.                   Lot 16 DP 45978

127.                   Lot 1 DP 1188714

128.                   Lot 2 DP 1191680

129.                   Lot 2 DP 242254

130.                   Lot 2 DP 47033

131.                   Lot 1 DP 1166470

132.                   Lot 1 DP 1189818

133.                   Lot 2 DP 1191684

134.                   Lot 20 DP 1162349

135.                   Lot 1 DP 1196291

136.                   Lot 11 DP 1150046

137.                   Lot 1 DP 1187095

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 737

138.                   Lot 2 DP 1196297

139.                   Lot 384 DP 728132

140.                   Lot 48 DP 704280

141.                   Lot 2 DP 1181584

142.                   Lot 2 DP 1187129

143.                   Lot 2 DP 1189846

144.                   Lot 1 DP 1197615

145.                   CAD ID 100244359

146.                   CAD ID 105572682

147.                   CAD ID 105203959

148.                   CAD ID 105520056

149.                   CAD ID 105679660

150.                   CAD ID 105296471

151.                   CAD ID 105362575

152.                   CAD ID 105702591

153.                   CAD ID 105544319

154.                   CAD ID 105538635

155.                   CAD ID 105705497

156.                   CAD ID 105477412

157.                   CAD ID 105519878

158.                   CAD ID 105045712

159.                   CAD ID 105391233

160.                   CAD ID 105419971

161.                   CAD ID 105706163

162.                   CAD ID 106712960

163.                   CAD ID 105356920

164.                   CAD ID 105080329

165.                   CAD ID 105074614

166.                   CAD ID100278572

167.                   CAD ID 100278804

168.                   CAD ID 105175481

169.                   CAD ID 105261049

170.                   CAD ID 105425621

171.                   CAD ID 105544317

172.                   Lot 2 DP 242554

173.                   Lot 17 DP 45978

174.                   Lot 385 DP 728132

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 738

175.                   Lot 383 DP 728131

176.                   Lot 2 DP 1027540

177.                   Lot 1 DP 1191684

178.                   Lot 1 DP 1190635

179.                   Lot 28 DP 45978

180.                   Lot 7301 DP 1158560

Part 3 (land and waters excluded from the native title determination application on 19 October 2022)

1.           CAD ID 105203966

2.           Lot 1 DP 806694

3.           (Part) Lot 129 DP 7556914

4.           Lot 132 DP 755691

5.           Lot 144 DP 755691

6.           (Part) Lot 126 DP 7556915

7.           Lot 130 DP 755691

8.           Lot 127 DP 755691

9.           Lot 131 DP 755691

10.         Lot 135 DP 755691

11.         Lot 143 DP 755691

12.         Lot 147 DP 755691

13.         Lot 133 DP 755691

14.         Lot 134 DP 755691

15.         Lot 93 DP 755691

16.         Lot 125 DP 755691

17.         CAD ID 104039770

18.         CAD ID 104406629

19.         CAD ID 104039848

20.         Lot 43 DP 755693

4 The excluded part of lot 129 in deposited plan 755691 is the part of former portion 80 in

Crown Plan 3999-1759, which is situated within lot 129 in deposited plan 755691. The area subject to the application is the remaining part of lot 129 in deposited plan 755691, which excludes the part of the land subject to former portion 80 in Crown Plan 3999-1759.

5 The excluded part of lot 126 in deposited plan 755691 is the part of Stibbards Creek within

lot 126 in deposited plan 755691. The area subject to the application is the part of the land within lot 126 in deposited plan 755691 to the north of Stibbards Creek, and the part of the land within lot 126 in deposited plan 755691 to the south of Stibbards Creek.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 739

21.         Lot 89 DP 755693

22.         CAD ID 104189557

23.         CAD ID 107200654

24.         CAD ID 107019614

25.         Lot 1 DP 712828

26.         Lot 90 DP 755712

27.         Lot 1 DP 123317

28.         Lot 91 DP 755712

29.         Lot 75 DP 755712

30.         CAD ID 107018948

31.         Lot 7001 DP 1063053

32.         Lot 1 DP 125323

33.         Lot 137 DP 755720

34.         Lot 1 DP 1097962

35.         Lot 72 DP 755739

36.         Lot 89 DP 755739

37.         Lot 82 DP 755739

38.         Lot 1 DP 1178152

39.         Lot 2 DP 1178152

40.         CAD ID 105051432

41.         CAD ID 105436971

42.         Lot 31 DP 755743

43.         CAD ID 107019470

44.         Lot 1 DP 603080

45.         Lot 121 DP 755746

46.         Lot 124 DP 755746

47.         Lot 55 DP 755752

48.         Lot 5 DP 821941

49.         Lot 7 DP 821941

50.         Lot 8 DP 821941

51.         Lot 3 DP 808304

52.         Lot 5 DP 249043

53.         Lot 4 DP 755752

54.         Lot 6 DP 821941

55.         Lot 64 DP 755752

56.         Lot 31 DP 755752

57.         Lot 98 DP 728194

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 740

58.         Lot 1 DP 755752

59.         CAD ID 100778047

60.         CAD ID 100002506

61.         CAD ID 105437024

62.         CAD ID 105567098

63.         CAD ID 105606725

64.         CAD ID 106732315

65.         CAD ID 104406630

66.         CAD ID 103685824

67.         CAD ID 106709313

68.         CAD ID 105544375

69.         CAD ID 107019477

70.         Lot 1 DP 230291

71.         CAD ID 105085732

72.         Lot 2 DP 808419

73.         CAD ID 106732200

74.         CAD ID 171230422

75.         CAD ID 107197768

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 741

SCHEDULE FOUR (AGREEMENTS)

1. The Indigenous land use agreement, known as the “Widjabul Wia-bal Goori naa Land Use Agreement ILUA”, made under section 24CA of the Native Title Act 1993 (Cth) executed on 11 November 2022 between:

(a) Murray John Roberts, Reginald King, June Gordon, Michael Ryan, Jim Speeding, Queenie Speeding, Ashley Moran, Steven Roberts, Jenny Smith, and Lois Johnson, in their capacity as the registered native title claimant for the land or waters covered by the native title determination application; and

(b)	Widjabul Wia-bal Gurrumbil Aboriginal Corporation, ICN 9856; and
(c)	the Attorney General of New South Wales; and
(d)	the Minister administering the Crown Land Management Act 2016 (NSW); and
(e)	the Minister administering the Fisheries Management Act 1994 (NSW); and
(f)	the Minister administering the National Parks and Wildlife Act 1974 (NSW); and
(g)	the Minister administering the Forestry Act 2012 (NSW); and
(h)	Secretary of the Department of Planning and Environment; and
(i)	Chief Executive Officer of the Forestry Corporation of NSW; and
(j)	Chief Executive Officer of the Local Land Service.

2.          Any other Indigenous land use agreement, which, after this approved determination of native title is made, is registered on the Register of Indigenous Land Use Agreement in relation to any land or waters within the native title determination area.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 742

SCHEDULE FIVE (OTHER INTERESTS IN THE NATIVE TITLE AREA)

The other interests in the native title area are as follows:

1.          Aboriginal Land Council interests

(a) The rights and interests of an Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983 (NSW) pursuant to undetermined Aboriginal land claims made under that Act, including the right to have each such claim determined according to law and, subject only to a determination that the land is “claimable Crown lands” as defined in section 36(1) of that Act, the right to the transfer of an estate in fee simple pursuant to that Act. A list of areas within the native title area where there are undetermined land claims is listed in the table below.

Local Aboriginal Land Council

Areas where there is undetermined

Area

land claim

Ngulingah Aboriginal Land Council

(1)	ID 2, 391/728158
(2)	ID 3, 390/728158
(3)	ID 6, 393/728548
(4)	ID 9, 382/728133
(5)	ID 20, 204/755686
(6)	ID 25, 20/6/758102
(7)	ID 27, 388/728129
(8)	ID 29, 1/118322
(9)	ID 34, 395/728644
(10)	ID 47, 7301/1143050
(11)	ID 48, 7300/1143052
(12)	Part ID 144, 251/728546
(13)	Part ID 147, 246/728123
(14)	ID 150, 248/728542
(15)	Part ID 151, 224/755703
(16)	ID 152, 220/755703
(17)	ID 162, 254/728179
(18)	Part ID 165, 247/728157
(19)	ID 180, 8/38/758489

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 743

Local Aboriginal Land Council

Areas where there is undetermined

Area

land claim

(20)	ID 182, 9/38/758489
(21)	ID 183, 115/728114
(22)	ID 184, 10/38/758489
(23)	Part ID 284, 450/755718
(24)	ID 285, 506/755718
(25)	ID 286, 563/755718
(26)	ID 310, 560/47475
(27)	ID 314, 590/728651
(28)	ID 320, 10/49/758615
(29)	Part ID 322, 8/49/758615
(30)	ID 323, 589/728651
(31)	ID 331, 7006/92626
(32)	ID 340, 399/755718
(33)	ID 342, 291/755718
(34)	ID 344, 387/755718
(35)	ID 346, 577/729282
(36)	ID 347, 292/755718
(37)	Part ID 416, 257/728175
(38)	ID 423, 215/755729
(39)	ID 424, 195/755729
(40)	ID 425, 303/728121
(41)	ID 429, 321/728530
(42)	Part ID 430, 304/729253
(43)	ID 432, 147/755729
(44)	ID 445, 269/728520
(45)	ID 446, 5/4/758489
(46)	ID 448, 264/728115
(47)	ID 450, 210/755736
(48)	Part ID 452, 267/728508
(49)	ID 456, 270/728525
(50)	ID 457, 265/728116
(51)	ID 460, 7302/1156949
(52)	ID 474, 149/755737

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 744

Local Aboriginal Land Council

Areas where there is undetermined

Area

land claim

(53)	ID 476, 155/755737
(54)	ID 477, 148/755737
(55)	ID 480, 160/729443
(56)	ID 482, 77/755737
(57)	ID 493, 100/755739
(58)	ID 496, 1/728683
(59)	ID 497, 2/728683
(60)	ID 499, 118/728509
(61)	ID 500, 119/728509
(62)	ID 502, 99/755739
(63)	ID 503, 115/728509
(64)	ID 504, 117/728509
(65)	Part ID 611, 131/728195
(66)	Part ID 612, 132/728195
(67)	Part ID 615, 18/755746
(68)	ID 623, 281/728633
(69)	ID 624, 282/728633
(70)	ID 626, 279/728189
(71)	Part ID 630, 7300/1143071
(72)	ID 840, 97/755746

Jali Local Aboriginal Land Council

(1)	Part ID 62, 241/755691
(2)	ID 111, 134/728166
(3)	ID 115, 137/728167
(4)	ID 126, 136/728167
(5)	ID 372, 335/728673
(6)	ID 530, 312/727794
(7)	ID 558, 375/729060
(8)	ID 572, 324/755745
(9)	ID 580, 372/729053

Gugin Gudduba Local Aboriginal

(1) ID 54, 188/728506

Land Council

(2)	ID 74,165/728505
(3)	ID 75, 164/728199

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 745

Local Aboriginal Land Council

Areas where there is undetermined

Area

land claim

(4)	ID 76, 155/755693
(5)	ID 77, 144/755693
(6)	ID 78, 153/755693
(7)	ID 79, 157/755693
(8)	ID 80, 117/755693
(9)	ID 82, 135/755693
(10)	ID 83, 149/755693
(11)	ID 209, 143/728515
(12)	ID 210, 142/728515
(13)	ID211, 144/728516
(14)	ID 212, 121/755711
(15)	ID 214, 107/755711
(16)	ID 216, 147/821601
(17)	ID 245, 183/726518
(18)	ID 249, 186/728691
(19)	ID 631,7300/1142925

Casino-Boolangle Local Aboriginal

(1) ID 542, 7003/1057130

Land Council

(2)	ID 543, 7009/1060428
(3)	ID 544, 7001/1060659
(4)	ID 545, 7006/1073212
(5)	ID 546, 7303/1153241

Tweed Byron Local Aboriginal Land

(1) ID 232, 93/755712

Council

(2)	ID 395, Part 7001/1055223
(3)	ID 396, Part 176/728171
(4)	Part ID 642, 89/755752
(5)	Part ID 643, 90/755752
(6)	Part ID 644, 99/728672
(7)	Part ID 645,100/728672
(8)	Part ID 646, 101/728672

(b) The rights of an Aboriginal Land Council (and its successors in title) as the holder of an estate in fee simple in relation to land that is transferred subject to native title pursuant to section 36(9) of the Aboriginal Land Rights Act 1983

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 746

(NSW) being the land transferred as a result of the claims referred to in Item 1(a)

above.

(c)

The rights and interests of an Aboriginal Land Council listed in the table below, and its successors in title, as the holder of an estate in fee simple including the rights of these Aboriginal Land Councils to use, manage, control, hold or dispose of, or otherwise deal with, land vested in it in accordance with the Aboriginal Land Rights Act 1983 (NSW):

Local Aboriginal Land Council Areas over which

Area freehold title held

Ngulingah Local Aboriginal Land	(1)	ID 3424, 207/755703
Council	(2)	ID 3500, 129/755703

(3)	ID 3850, 250/1018937
(4)	ID 18429, 151/755726
(5)	ID 18460, 164/704331
(6)	Part ID 18462, 5/7018356
(7)	ID 18468, 175/728642
(8)	ID 18639, 171/48782
(9)	ID 18680, 173/728159
(10)	ID 18717, 170/723061
(11)	ID 20910, 161/729443
(12)	ID 20912, 159/729443
(13)	ID 22335, 114/727440
(14)	ID 27078, 133/728196
(15)	ID27080, 95/755746
(16)	ID 27093, 134/728196
(17)	ID 27481, 280/728190

2.          Reserves

(a) The rights of State, Local Council and other organisations or persons who have the care, control and management of any reserves subject to the laws of the State of New South Wales and of the Commonwealth; and

6 The extinguished part of lot 5 in desposited plan 701835 is the northern portion of the parcel

comprising the nursery and orchard. The native title area is the remainder of the land within

the parcel’s cadastral boundary, being the southern, vegetated portion of the parcel.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 747

(b) the rights of persons entitled to access and use reserves for the 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 holders of any petroleum interests.

4.          Water interests

The rights of any holder as at the date of the approved determination of native title of any licences or permissive occupancies granted under the Water Act 1912 (NSW) and the Water Management Act 2000 (NSW).

5.          Fishing interests

(a)	The rights of the holders from time to time of leases, licences and permits granted or issued under the Fisheries Management Act 1994 (NSW) and Regulations made under that Act.
(b)	Other rights and interests under the care, management and control of the Department of Primary Industry – Fisheries subject to the laws of the State of New South Wales and of the Commonwealth.
(c)	The rights of the Department of Primary Industry – Fisheries and employees or agents of the same under the Fisheries Management Act 1994 (NSW) and Regulations made under that Act.

6.          National park interests

(a)	The rights of the holders from time to time of leases, licences and permits granted or issued under the National Parks and Wildlife Act 1974 (NSW) and Regulations made under that Act.
(b)	The rights of the National Parks and Wildlife Service, and employees or agents of the same under the National Parks and Wildlife Act 1974 (NSW) and Regulations made under that Act.
(c)	The rights of the National Parks and Wildlife Service, and employees or agents of the same, who have the care, control and management of any reserves, subject to the laws of the State of New South Wales and of the Commonwealth.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 748

7.          Occupational permits

The rights and interests of any holder as at the date of the approved determination of native title of any forest permit under the Forestry Act 2012 (NSW) which continues in force under the National Parks and Wildlife Act 1974 (NSW).

8.          Forestry interests

(a)	The rights of the holders from time to time of leases, licences and permits granted or issued under the Forestry Act 2012 (NSW) and Regulations made under that Act.
(b)	Other rights and interests under the care, management and control of the Forestry Corporation of New South Wales (as constituted under the Forestry Act 2012 (NSW)) subject to the laws of the State of New South Wales and of the Commonwealth.
(c)	The rights of the Forestry Corporation of New South Wales, and employees or agents of the same under the Forestry Act 2012 (NSW) and Regulations made under that Act.

9.          Crown land interests

(a)	The rights of the holders from time to time of leases, licences and permits granted or issued under the Crown Lands Management Act 2016 (NSW) and Regulations made under that Act.
(b)	Other rights and interests under the care, management and control of the New South Wales Department of Planning and Environment – Crown Lands Division subject to the laws of the State of New South Wales and of the Commonwealth.
(c)	The rights of the New South Wales Department of Planning and Environment – Crown Lands Division, and employees or agents of the same under the Crown Lands Management Act 2016 (NSW) and Regulations made under that Act.

10.        Telstra Corporation Limited and Amplitel Pty Ltd

The rights and interests of Telstra Corporation Limited (ACN 051 775 556), Amplitel Pty Ltd as trustee of the Towers Business Operating Trust (ABN 75357 171 746) and any of their successors in title:

(a) as the owner(s) or operator(s) of telecommunications facilities within the native title area;

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 749

(b)

created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth), Telecommunications Act 1997 (Cth) and the Government Telecommunications Act 2018 (NSW), including rights:

(i)	to inspect land;
(ii)	to install and operate telecommunications facilities; and
(iii)	to alter, remove, replace, maintain, repair and ensure the proper functioning of their telecommunications facilities;

(c)

for their employees, agents or contractors to access its telecommunications facilities in and in the vicinity of the native title area in the performance of their duties; and

(d)

under any lease, licence, access agreement or easement relating to their telecommunications facilities in the native title area.

11.        Electricity and energy supply interests

(a)

The rights and interests of an electricity authority within the meaning of the Gas and Electricity (Consumer Safety) Act 2017 (NSW) and the Energy Services Corporations Act 1995 (NSW) in exercising functions, powers or rights in accordance with the laws of the State of New South Wales or of the Commonwealth and as either or both owner and operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure situated on the native title area, including but not limited to rights under the Gas and Electricity (Consumer Safety) Act 2017 (NSW) and the Energy Services Corporations Act 1995 (NSW) to enter the native title 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); or

(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

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 750

operate a transmission system within the meaning of the Electricity
Supply Act 1995 (NSW);

in exercising functions, powers or rights in accordance with the laws of the State of New South Wales or of the Commonwealth as the operator of facilities for the transmission of electricity and other forms of energy and associated infrastructure situated on the native title area, including but not limited to rights under the Electricity Supply Act 1995 (NSW); to enter the native title area in order to access, use, maintain, repair, replace, upgrade or otherwise deal with existing facilities and infrastructure.

12.        Local council interests

The rights and interests of Byron Shire Council and Lismore City Council and any other Local Government Authority constituted under the Local Government Act 1993 (NSW), including but not limited to:

(a)	rights and interests under any lease, licence, permit, easement, covenant or other estate benefitting or granted to a council;
(b)	rights and interests as Crown land manager under the Crown Land Management Act 2016 (NSW) including but not limited to rights to use and manage the land, and to grant rights, estates and interests in the land, in accordance with that Act and the Local Government Act 1993 (NSW) and any plan of management adopted under those Acts;
(c)	rights and interests under any lease, licence, permit, easement, covenant or other estate granted by a council;
(d)	rights and interests to use and manage land for which council has responsibility and control under section 48 of the Local Government Act 1993 (NSW); and
(e)	rights to access, use and manage any public work or public infrastructure or other structure constructed on or over the land or waters.

13.        Other interests generally

(a) Rights and interests, including fee simple interests, leases, 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.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 751

(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 or statute.

(d)

So far as is confirmed pursuant to section 18 of the Native Title (New South Wales) Act 1994 (NSW) as at the date of the approved determination of native title, any existing public access to and enjoyment of:

(i)	waterways;
(ii)	the bed and banks or foreshores of waterways;
(iii)	travelling stock reserves; and
(iv)	areas that were public places at the end of 31 December 1993.

(e)

The rights of:

(i)	an employee, agent or instrumentality of the State of New South Wales;
(ii)	an employee, agent or instrumentality of the Commonwealth;
(iii)	an employee, agent or instrumentality of any Local Government Authority,

to access the native title area and carry out actions as required in the performance of his, her or

its statutory or common law duties.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521	752
Paragraph 31, line 10	The words “(SD 68)” be deleted.

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521

1.	7	A/390950
2.	35	1/1042417
3.	36	20/1116276
4.	37	1/1162240
5.	44	1/928224
6.	49	2/1172181
7.	57	2/1142908
8.	58	10/1162964
9.	66	2/801877
10.	99	1/650897
11.	101	1/1173147
12.	102	12/1181837
13.	118	14/623877
14.	123	1/170806
15.	125	18/612192
16.	127	13/623877
17.	168	2/1101716
18.	188	1/1112028
19.	196	4/608167
20.	198	52/884088
21.	233	5/626244
22.	235	5/255790
23.	254	2/1007199
24.	259	10/1157005
25.	305	14/551625
26.	307	15/775333
27.	315	38/832706
28.	317	5/49/758615
29.	332	1/795540
30.	335	1/864013
31.	336	104/617898
32.	358	201/1171887
33.	359	7/1191161
34.	378	1/1151168
35.	379	1/1195319

Widjabul Wia-Bal v Attorney-General of New South Wales (Section 87 Agreement) [2022] FCA 1521 185