The New South Wales Aboriginal Land Council of33.t\rgyle Street, Parramatta in the State of New South Wales ("NSWALC")

Transcription

1 194 AMPLA Bulletin Vol. 15(4) DEED OF AGREEMENT BETWEEN KIMBERLEY MAXWELL YEADON, THE MINISTER FOR LAND AND WATER CONSERVATION FOR AND ON BEHALF OF THE STATE OF NEW SOUTH WALES AND MARY-LOU BUCK, ON BEHALF OF HERSELF AND THE DUNGHUTTI PEOPLE AND THE NEW SOUTH WALES ABORIGINAL LAND COUNCIL 9 OCTOBER 1996 The resolution of the native title claim at Crescent Head NSW has generated considerable interest. The agreement, the text ofwhich appears below, is recorded in the General Register of Deeds maintained under the Conveyancing Act 1919 (NSW) at the Lands Titles Office, Sydney, NSW. This Deed is made on 9th October 1996 Between: Kimberley Maxwell Yeadon, Minister for Land and Water Conservation as State Minister under the Native Title Act 1993 (Cth), for and on Behalf of the State of New South Wales ("The State") and Mary-Lou Buck of 28 Angus McNeil Crescent, Kempsey in the State ofnew South Wales ("the Native Title Claimant") and The New South Wales Aboriginal Land Council of33.t\rgyle Street, Parramatta in the State of New South Wales ("NSWALC") Whereas: A. As at 1788 the Dunghutti people were the traditional owners of land at Crescent Head, being the land described in Schedules 1 and 2 hereto (hereinafter called "Block A" and "Block B" respectively), and since then, and up until the present time, the Dunghutti have maintained a continuing connection with that land in accordance with their laws and customs; B. Prior to 1 January 1994 the State carried out certain development works in respect ofblock A, consisting ofthe subdivision ofthe said land into 55 residential lots and the construction ofroads within the subdivision and the provision ofservices to those lots. C. Prior to 1 January of the 55 lots in Block A were sold as freehold titles under the Real Property Act 1900 (NSW).

2 Vol. 15(4) Crescent Head Agreement 195 D. On 1 July 1994 the.then Minister for Land and Water Conservation, the Honourable George Souris MP, lodged an application with the National Native Title Tribunal ("NNTT") pursuant to s 13(1) of the Native Title Act 1993 (Cth) ("the Act") for a determination of native title in. respect of land at Crescent Head being the balance of36 lots ofblock A together with the land in Block B. E. The Minister's application was accepted by the NNTT under s 63(1) ofthe Act on 15 July F. Notice of the Minister's application was given under s 66 of the Act. G.On 10 October 1994 the native title claimant, on behalfof herself and the Dunghutti people, lodged an application withthe NNTT pursuant to s 13(1) ofthe Act for a determination ofnative title in respect ofthe same land as was the subject of the Minister's application. H. The native title claimant's application for determination of native title was accepted bythe NNTT under s 63(1) ofthe Act on 28 November 1994, and in consequence, the Minister's application was taken to have been dismissed by operation of s 67(1) of the Act. I. By notice dated 6 March 1995 the Minister, being the Government party for the State of New South Wales within the meaning of s 29 of the Act, gave notice pursuant to that section ofhis intention to do a permissible future act, namely, the acquisition by compulsoryprocess ofthe native title rights and interests (if any) in the land described in Schedule 3 hereto pursuant to s 135 of the Crown Lands Act 1989 (NSW) and s 7A of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for the public purpose of residential sites and thereafter give effect to that purpose by offering the lots for sale to the general public ("the proposed future act"). J. The native title claimant is the only native title party as defined in s 253 of the Act in respect of the land the subject of the notice relating to the proposed future act. There is no grantee party as defined in s 253 ofthe Act. K. The NSWALC, pursuant to s 202(1) of the Act, is a representative Aboriginal/Torres Strait Islander body for New South Wales and pursuant to s 202(4)(c) represents the native title claimant in negotiations and proceedings relating to matters the subject of this Deed and relevant to the operation of the Act. L. Pursuant to Part 2, Division 3, Subdivision B ofthe Act negotiations in good faith in respect ofthe proposed future act have been conducted between the State and the native title claimant as represented by the NSWALC. Such negotiations have been assisted by the NNTT as arbitral body pursuant to s 31(2) of the Act. M. As a result ofthose negotiations the native title claimant has agreed, pursuant to ss 21(1)(b) and 31(1)(b) of the Act, to the doing of the proposed future act subject to compliance by the State with the conditions set out in this Deed and otherwise the parties have agreed to settle all matters in dispute arising out of the native title determination applications and the notice of proposed future act.

3 196 AMPLA Bulletin Vol. 15(4) Now this Deed Witnesses: 1. The parties agree and acknowledge: (a) that the Dunghutti people were the traditional owners ofthe land in Block A and Block B as at 1788 and that since then and up until the present time they have maintained a continuing connection with that land in accordance with their laws and customs; (b) that prior to the coming into force ofthe Racial Discrimination Act 1975 '(Cth) native title had not been extinguished in relation to Block A and Block B; (c) that as a consequence of a past act, namely, the carrying out on Block A of a public work as defined in s 253 of the Act, native title to those parts of Block A on which the public work concerned is situated, was extinguished pursuant to s 11 ofthe Native Title (New South Wales) Act 1994 and s 19(1) of the Act; (d) that as a consequence of a past act, namely, the alienation by sale of the fee simple in 19 lots in Block A, native title to those lots, not otherwise extinguished by reason ofthe past act referred to in subclause (c) ofthis clause 1 was extinguished pursuant to s 10 ofthe Native Title (New South Wales) Act 1994 and s 19(1) of the Act; (e) that native title may continue to exist in relation to the other parts of Block A; (f) that native title has continued to exist in relation to Block B; and (g) that native title means the communal rights and interests of the Dunghutti people in relation to Block A and.block B, conferring on the Dunghutti people possession, occupation and enjoyment ofthe land to the exclusion ofall people 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 ofnew South Wales or the Commonwealth of Australia which are not inconsistent with the Racial Discrimination Act 1975 or the Act. 2. Subject to compliance by the State with the obligations imposed on it by this Deed, the native title claimant, pursuant to ss 21(IXb) and 31(IXb) of the Act, hereby agrees to the doing of the proposed future. act. 3. The native title claimant will arrange for the incorporation ofa body corporate ("the body corporate"), in accordance with and for the purposes of the regulations made pursuant to ss 58 and 59 of the Act, to hold on trust for the Dunghutti people the monies to be paid pursuant to the terms of this Deed. 4. The native title claimant agrees that in consideration ofthe amounts agreed to be paid by the State as provided for by clause 9(c), all native title rights and interests in Block B shall as and from the specified time as provided in clause 5, pass to the State with the intention that the provisions ofs 21(I)(a) of the Act shall have effect. 5. The specified time for the purposes of clauses 4, 7 and 9 is as follows: (a) If on or before 6 November 1996 application is made to the Federal Court for an order determining native title in respect of Block B, the land in Schedule 3 and Lot 44 DP and;

4 Vol. 15(4) Crescent Head Agreement 197 (b) (i) an order is made then the specified time shall be 5 pm on the date on which the order is made; or (ii) an order is not made then the specified time shall be 5 pm on the date on which the proceeding is terminated by order ofthe Court, by discontinuance or otherwise; Ifon or before 6 November 1996 application is not made to the Federal Court for an order determining native title in respect of Block B, the land in Schedule 3 and Lot 44 DP the specified time shall be 5 pm on that date. 6. Ifapplication is made to the Federal Court for an order determining native title in respect of Block B, the land in Schedule 3 and Lot 44 DP then the State shall support such application and consent to the making of such order. 7. The native title claimant agrees that in consideration. ofthe State agreeing to make the payments and do the acts as provided by this Deed, all native title rights and interests in Lot 44, DP as and from the specified time as provided for in clause 5 pass to the State with the intention that the provisions of s 21 (1 )(a) of the Act shall have effect. 8. The State hereby agrees that: (a) in consideration of the native title claimant's agreement to the doing of the proposed future act; and (b) by way of payment ofcompensation for the extinguishment of native title in respect of Block A by reason of the past acts referred to in subclauses (c) and (d) ofclause 1 hereofand the proposed future act; and (c) to settle all issues between the parties in relation to Block B; the State will make such payments and do such acts as it may be required to do pursuant to clauses 9 and 14 hereof. 9. The State agrees: (a) (b) (c) to pay to the body corporate within28 days ofthe execution ofthis Deed or the incorporation of the body corporate, whichever is the later, the sum of$256,000 in compensation for the extinguishment ofnative title in respect ofblock A by reason ofthe past acts referred to in subclauses (c) and (d) of clause 1; to pay to the body corporate within 28 days of the publication in the Government Gazette of the acquisition notice under s 20 of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) in respect ofthe land described in Schedule 3 hereto the sum of$482,000 in compensation for the effect on native title of such acquisition and any subsequent extinguishment of native title by any act done in giving effect to the purpose of that acquisition; in consideration for the passing to the State of native title in Block B referred to in cl 4, to pay to the body corporate: (i) if Block B or a part thereof is subdivided and developed for sale as fully serviced lots (which expression means lots for which all normal services, such as roads, kerbing and guttering, water, power and sewage disposal have been provided) and some or all of those

5 198 AMPLA Bulletin Vol. 15(4) lots are sold by the State within 10 years of the date ofthis Deed, 120/0 of the gross.sale price of each lot in the subdivision, such amount to be paid within 28 days of the date of the sale of the relevant lot. In the event that at the end ofthe period of 10 years, some ofthe fully serviced lots remain unsold, then the State will pay to the body corporate an amount equal to 120/0 of the market value of the remaining lots as determined by the Valuer General, such amount to be paid within 28 days of the receipt by the State of the Valuer General's valua tion; or... (ii) ifblocko B is sold by the State as one or more undevelopedlots within 10 years of the date of this Deed, the sale price of Block B or the relevant part thereot; less the State's reasonable.costs in selling Block B, or that part thereofand less any land maintenance costs incurred by the State in respect ofblock B, or that part thereof, such amount to be paidwithin 28 days ofthe date ofsale. Unless otherwise agreed by the native title claimant, any such sale will be auction or tender, with a reserve price set at the market value ofthe land as determined by the Valuer General; or (iii) ifblock B, or part thereof, is compulsorily acquired by a statutory authority within 10 years of the date of this Deed, the amount of compensation received by the State in accordance with the law under which the land is compulsorily acquired, less any land maintenance costs incurred by the State in respect of Block B, or the relevant part thereot; such amount to be paid within 28 days of receipt by the State of the compensation; or (iv) if Block B, or part thereof, is claimed under s 36 ofthe Aboriginal Land Rights Act 1983 (NSW) by an Aboriginal Land Council within 10 years of the date of this Deed and the claim is subsequently granted by the Minister as referred to in s 36 of that Act or the Land and Environment Court on appeal then no payment ofmoney will be made in respect ofthe land granted pursuant to the claim; or (v) if subparagraph 9 (c) (i), (ii), (iii) or (iv) do not apply, the market value ofblock B or that part thereof in respect ofwhich payment has not otherwise been made or,.where part of Block B has been dealt with as referred to in subparagraph 9 (c) (iv), that part not granted under the Aboriginal Land Rights Act 1983 (NSW), as at the tenth anniversary of the date of this Deed, as determined by the Valuer General, less any land maintenance costs incurred by the State in respect of Block B, or that part thereof, such 0amount to be paid within 28 days of receipt by the State of the Valuer General's valuation; provided that the State is not required to make any payments under this clause 9 (c) until the specified time as provided in clause The parties hereby agree and acknowledge that the agreements and acknowledgments contained herein are the result oftheir agreement to resolve the matters in dispute between them in respect of the land the subject of the native title determination applications referred to in Recitals D. and G and the notice of intention to do a permissible future act referred to in Recital I, and that they in no way represent.any acknowledgment by the State

6 Vol. 15(4) Crescent Head Agreement 199 that any other land in New South Wales is or was held by the native title claimant or the Dunghutti people under native title. 11. In consideration of the compensation agreed to be paid by the. State to the body corporate on behalfofthe native title claimant, the native title claimant by this Deed releases and discharges the Minister, the State and Her Majesty the Queen Her Heirs and Successors from all claims demands actions suits and causes ofaction or suit or sums ofmoney compensation interest damages costs charges and expenses now or hereafter of the native title claimant for or on account of the extinguishment of native title rights and interests by the past acts referred to in subclauses (c) and (d) ofclause 1, or for the effect on native title ofthe compulsory acquisition comprising the proposed future act, and any subsequent extinguishment of native title by any act done in giving effect to the purpose ofthat acquisition, or for or on account of any other matter or thing arising out of or in respect of such extinguishment or acquisition. 12. (a) The native title claimant warrants that she represents all the persons entitled to native title rights and interests in Block A and Block B, and, subject to ci12(b) hereof; agrees to indemnify and keep indemnified the State from and against any and all claims for compensation under any Act or law or other action or damages by any person who establishes a superior interest to the interest claimed by the native title claimant in the said land. (b) The State agrees that upon receipt of a deed executed by the body corporate pursuant to which the body corporate gives an indemnity in terms ofthe indemnity given by the native title claimant in cl12 (a) hereof, the State will release, waive and discharge the indemnity given by the native title claimant in that clause. 13. (a) The parties agree that a copy of this agreement will be given to the NNTT, as the arbitral body, pursuant to s34 of the Act. (b) The parties agree that the agreements and acknowledgments contained in this Deed resolve and finally settle the native title determination application by the native title claimant. 14. The parties agree to act in good faith and to use their best endeavours to implement the terms of this Deed and, in particular, without undue delay to perform the obligations imposed respectively upon them including: (a) (b) (c) (d) compliance with the procedural requirements of the Act; the incorporation of the body corporate; the execution ofsuch further documents as may be required to give effect to the agreements contained in this Deed; and the payment of monies. 15. The State will pay to the NSWALC the native title claimant's reasonable legal costs incurred in the negotiation of this Deed in the sum of $30,000 within 28 days of the date of this Deed. SCHEDULE 1 All that piece or parcel ofland at Crescent Head in the CountyofMacquarie Parish of Parlmerston and Kempsey Local Government Area being the whole of the land in Deposited Plans and

7 200 AMPLA Bulletin Vol. 15(4) SCHEDULE 2 All that piece or parcel oflandat Crescent Head in the CountyofMacquarie Parish of Palmerston and Kempsey Local Government Area 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 ofthe land shown by black hatching on the plan marked "A" annexed to said application which does not include the land in Deposited Plans and SCHEDULE 3 All that piece. orparcel oflandat Crescent Head in the CountyofMacquarie Parish of Palmerston and Kempsey Local Government Area being lots 2,9, 12, 14 to 16, 19 and 20 in Deposited Plan and lots 24, 26 to 38, 40 to 43, 45, 46 and 49 to 55 in Deposited Plan In Witness of their agreement the parties have hereunder signed their names and affixed their seals Signed sealed and delivered by Kimberley Maxwell Yeadon,Minister for Land and Water Conservation for and on behalf of the State of New South Wales in the presence of: /Y~.I~~~ r~~-- Signed sealed and delivered by Mary-Lou Buck in the presence of: ~~ Signed, sealed and delivered by Manu! Ritchie, Acting Director, for and on behalf of the New South Wales Aboriginal Land.Council in the presence of:

8 Vol. 15(4) Crescent Head Agreement 201 NATIVE TITLE DETERMINATION APPLICATII)N CRESCENT HEAD N.S.W. 'A,1 ---~ -----_.. -.._----- / ;'. '. -' l... LEGEND Extract from O'own Lent AcmIri.trotion Mcp fo' the Town of O'-.nt Head and Ad.foirq Lande. 8th EdtlM ~ tain9 the DigItal CGdaetral OQtabaM and Town of O'eMnt Head. Schedule 10 Land described in Schedule 1 to the Deed of 9 October 1996 (Block A) Schedule 2 G.SJ Land described in Schedule 2 to the Deed of9 October 1996 (Block B) Schedule.3 RJ Land described in Schedule.3 to the Deed of 9 October 1996 (lots to be compulsorily acquired)