Editors --- "The Crescent Head Agreement - Digest" [1997] AUIndigLawRpr 3; (1997) 2(1) Australian Indigenous Law Reporter 100

The Crescent Head Agreement

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 (C'th), 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 OF NEW SOUTH WALES ("THE NATIVE TITLE CLAIMAINT")

AND

THE NEW SOUTH WALES ABORIGINAL LAND COUNCIL OF 33 ARGYLE 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 of Block A, consisting of the subdivision of the said land into 55 residential lots and the construction of roads with the subdivision and the provision of services to those lots.

C. Prior to 1 January 1994 19 of the 55 lots in Block A were sold as freehold titled under the Real Property Act 1900 (NSW).

D. 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 (C'th) ("the Act") for a determination of native title in respect of land at Crescent Head being the balance of 36 lots of Block A together with land in Block B.

E. The Minister's application was accepted by the NNTT under s. 63 (1) of the Act on 15 July 1994.

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 behalf of herself and the Dunghutti people, lodged an application with the NNTT pursuant to s. 13(1) of the Act for a determination of native title in respect of the 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 by the NNTT under s. 63(1) of the 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, give notice pursuant to that section of his intention to do a permissible future act, namely, the acquisition by compulsory process of the 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 of the Act.

K. The NSWALC, pursuant to s. 202(l) 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 of the Act negotiations in good faith in respect of the 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 of those negotiations the native title claimant has agreed, pursuant to ss. 21(l)(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.

NOW THIS DEED WITNESSES

1. The parties agree and acknowledge:

a. that the Dunghutti people were the traditional owners of the 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 of the Racial Discrimination Act 1975 (C'th) 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 of the Native Title (New South Wales) Act 1994 and s. 19(l) 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 of the past act referred to in subclause (c) of this clause 1 was extinguished pursuant to s. 10 of the Native Title (New South Wales) Act 1994 and s. 19(l) 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 of the land to the exclusion of all 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 of New South Wales or the Commonwealth of Australia which are not inconsistent with the Racial Discrimination Act 1975 or the Act.

3. The native title claimant will arrange, for the incorporation of a 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 of the amounts agreed to be paid by the State as provided for by clause 9c, 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 of s. 21(l)(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 822650 and

(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 of the Court, by discontinuance or otherwise;

b. If on 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 822650 the specified time shall be 5pm on that date.

7. The native title claimant agrees that in consideration of the 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 822650 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(l)(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 of compensation for the extinguishment of native title in respect of Block A by reason of the past acts referred to in subclauses (c) and (d) of clause 1 hereof and 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.

a. to pay to the body corporate within 28 days of the execution of this Deed or the incorporation of the body corporate, whatever is the later, the sum of $256,000 in compensation for the extinguishment of native title in respect of Block A by reason of the past acts referred to in subclauses (c) and (d) of clause 1;

b. 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 of the 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;

c. 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) 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 lots are sold by the State within 10 years of the date of this Deed, 12% 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 of the period of 10 years, some of the fully serviced lots remain unsold, then the State will pay to the body corporate an amount equal to 12% 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 valuation; or

(ii) if Block B is sold by the State as one or more undeveloped lots within 10 years of the date of this Deed, the sale price of Block B or the relevant part thereof, less the State's reasonable costs in selling Block B or that part thereof and less any land maintenance costs incurred by the State in respect of Block B, or that part thereof, such amount to be paid within 28 days of the date of sale. 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 of the land as determined by the Valuer General; or

(iii) if Block 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 thereof, 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 of the Aboriginal Land Rights Act 1993 (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 of money will be made in respect of the land granted pursuant to the claim; or

(v) if subparagraphs 9 cl (i), (ii), (iii) or (iv) do not apply, the market value of Block B or that part thereof in respect of which payment has not otherwise been made or, where part of Block B has been dealt with as referred to in subparagraph 9 cl (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 amount 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 9c until the specified time as

provided in clause 5.

11. In consideration of the compensation agreed to be paid by the State to the body corporate on behalf of the 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 of action or suit or sums of money 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) of clause 1, or for the effect on native title of the compulsory acquisition comprising the proposed future act, and any subsequent extinguishment of native title by any act done in giving effect to the purpose of that 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 cl. 12b 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 of the indemnity given by the native title claimant in clause 12a hereof, the State will release, waive and discharge the indemnity given by the native title claimant in that clause.

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.

a. compliance with the procedural requirements of the Act,

b. the incorporation of the body corporate;

c. the execution of such further documents as may be required to give effect to the agreements contained in this Deed; and

d. the payment of monies.

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 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 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 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.