Mary Lou Buck on behalf of the Dunghutti People v State of New South Wales

[1997] FCA 1624

FEDERAL COURT OF AUSTRALIA

Mary Lou Buck on behalf of the Dunghutti People  v State of New South Wales and Ors [1997] FCA 1624

Consent Determination

Native Title Act 1993

MARY LOU BUCK ON BEHALF OF THE DUNGHUTTI PEOPLE  V STATE OF NEW SOUTH WALES AND ORS

NG 6002 of 1996

LOCKHART J
7 APRIL 1997
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6002  OF 1996

BETWEEN:	Mary Lou Buck on behalf of the Dunghutti People APPLICANT
AND:	The State of New South Wales FIRST RESPONDENT OTHER RESPONDENTS see attachment
JUDGE:	Lockhart J
DATE OF ORDER:	7 April 1997
WHERE MADE:	SYDNEY

THE COURT NOTES THAT:

The Court notes that:

1. The applicant, the State of New South Wales and the New South Wales Aboriginal Land Council have reached agreement in accordance with the terms contained in the deed dated 9 October 1996 registered number 685 Book 4156 (“the deed of agreement").

2. Pursuant to s. 87(1)(a)(i) of the Native Title Act 1993 the parties have reached agreement that the Court make orders in relation to the proceedings consistent with the deed of agreement.

3. Pursuant to s. 87(1)(b) of the Native Title Act 1993 the terms of that agreement, in writing signed by or on behalf of the parties, have been lodged with the Court.

4. The term of the proposed orders involve the making of a determination that native title exists in relation to certain land.

5. The applicant, as a representative of the Dunghutti people, the common law native title holders of that land, has indicated that the common law holders intend to have the native title held in trust and that Dunghutti Elders Council (Aboriginal Corporation), a prescribed body corporate for the purposes of s.56 of the Native Title Act 1993, is to be trustee of the native title.

6. Dunghutti Elders Council (Aboriginal Corporation) has consented in writing to be trustee of the native title.

And being satisfied that orders in, or consistent with, those terms would be within the power of the Court, and it appearing to the Court appropriate to do so, the Court, pursuant to s.87(2) of the Native Title Act 1993 and by consent of the parties, orders:

1. It be determined that native title exists in relation to land at Crescent Head being the land described in Schedules 2 and 3 hereto and lot 44 in Deposited Plan 822650, which lot is part of the land described in Schedule 1 hereto.

2. It be determined that the native title in the said land comprises the communal rights and interests held by the Dunghutti people, conferring on them possession, occupation and enjoyment of the land to the exclusion of all others, such that the Dunghutti people may exercise whatever rights and interests (whether communal, group or personal) are recognised by their traditional laws and customs as in force at any relevant time, subject to any laws of the State of New South Wales or the Commonwealth of Australia which are not inconsistent with the RacialDiscrimination Act 1975 or the Native Title Act 1993.

3. It be determined that the rights and interests from time to time comprising the native title is to be held in trust for the common law holders by Dunghutti Elders Council (Aboriginal Corporation), a prescribed body corporate for the purposes of s.56 of the Native Title Act 1993.

The Court further notes that:

1. Pursuant to subclauses (c) and (d) of clause 1 of the deed of agreement the applicant acknowledges that the native title rights and interests in that part of the land described in Schedule 1, other than the land described in Schedule 3 and lot 44 in Deposited Plan 822650, have been extinguished.

2. The applicant has agreed pursuant to clause 9(a) of the deed of agreement on the amount of compensation for the extinguishment of those native title rights and interests.

3. Pursuant to clause 2 of the deed of agreement the applicant consents to the doing by the State of New South Wales of a future act in respect of the land described in Schedule 3 hereto, namely, the acquisition of the native title rights and interests in that land by compulsory process pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

4. Pursuant to clauses 4 and 7 of the deed of agreement the native title rights and interests in lot 44 in Deposited Plan 822650 and in the land described in Schedule 2 hereto are to pass to the State of New South Wales at 5 pm today with the intention that the provisions of section 2 1 21(1)(a) of the Native Title Act 1993 shall have effect.

NG6002/96
Mary Lou Buck v The State of New South Wales and Ors
Attachment of Other Respondents

1.	Anderson, Iris
2.	Anderson, Ronald
3.	Bennett, N
4.	Bennett, A
5.	Cockroft, Craig
6.	Davies, Jeff
7.	Davies, Lynette
8.	Dube, Richard
9.	Dube, Susan
10.	Elysee, Jackie
11.	Forrest, Alan
12.	Forrest, Elizabeth
13.	Fowler, Katherine
14.	Fowler, Michael
15.	Fraser, Jody
16.	Fraser, Sue
17.	Graham, Allan
18.	Holmes, Amanda
19.	James, David
20.	James, Sally
21.	Jardine, David
22.	Kennedy, Jeanine
23.	Lawrence, Alan
24.	Lindsay, Sarah
25.	Maynard, John
26.	Maynard, Lisa
27.	McKay, MA
28.	McKay, WJ
29.	NSW Aboriginal Land Council
30.	Perrin, Raymond
31.	Schindehuette-Scott, Tamara
32.	Shaw, Peter
33.	Shaw, Rowan
34.	Tatnell, Judith
35.	Thomas, Andrew
36.	Treloar, Anna

SCHEDULE 1

All that piece or parcel of land at Crescent Head in the County of Macquarie Parish of Palmerston and Kempsey Local Government Area shown by black edging on the plan annexed hereto and marked “A1” being the whole of the land in Deposited Plans 729843 and 822650

SCHEDULE 2

All that piece or parcel of land at Crescent Head in the County of Macquarie Parish of Palmerston and Kempsey Local Government Area shown by black hatching on the plan annexed hereto and marked “A1” being the unsurveyed Crown land described in paragraph B5 of the Native Title Determination Application number NN94/11 lodged by the Minister for Land and Water Conservation with the National Native Title Tribunal on 1 July 1994 and being that part of the land shown by black hatching on the plan marked “A” annexed to said application which does not include the land in Deposited Plans 729843 and 822650

SCHEDULE 3

All that piece or parcel of land at Crescent Head in the County of Macquarie Parish of Palmerston and Kempsey Local Government Area shown by dark grey and light grey shading on the plan annexed hereto and marked “A1” being lots 2, 9, 12, 14 to 16, 19 and 20 in Deposited Plan 729843 and lots 24, 26 to 38, 40 to 43, 45, 46 and 49 to 55 in Deposited Plan 822650.