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Native title for ‘saltwater people’

(l-r) Yaegl elders Aunty Elizabeth Smith, Aunty Lillian Walker and Uncle Ron Herron: Aunty Lillian and Uncle Ron, as claimants, hold their copies of the determination. Image Geoff Helisma
In 2015, the Federal Court’s Justice Jayne Jagot described the length of time it took to rule on the Yaegl people’s successful 1996 land and river-based native title application as “shameful”; last Thursday August 31, her “frustration” over the exclusion of the seaward part of the Yaegl #2 claim (made in 2011) was appeased when she granted native title over “the intertidal zone and the seaward extent of Yaegl country”. “They are all proud Yaegl people,” she said, describing those who had provided evidence on which she based her decision, “…saltwater people; living their culture and passing it on to the younger generation. “Today, the law of Australia acknowledges and recognises that the waters offshore and surrounding the Dirrangun are also Yaegl country – astonishingly beautiful Yaegl country if I may say.” The decision made a little history of its own, too; it was the first in NSW to recognise native title rights over the ocean, which extend 200 metres east of the mean low water mark from Woody Head in the north to Wooli in the south – the ‘inner extent area’. The Yaegl native title decision also incorporates an ‘outer extent area’, which includes the seaward area around the Yaegl people’s sacred site, the Dirrangun, located at the mouth of the Clarence River. This area extends 920 metres east of the mean low water mark. “Some two years ago, I said this,” Justice Jagot told those gathered. “Today, at last, the Yaegl people will be recognised as having that which they always, in truth, had, but which remained unrecognised by the common law of Australia – Yaegl title rights and interests in the land within the claim area. “…Today, two years later, we’ve come to rectify that omission [of the seaward claim]. “The evidence of the Yaegl people in support of their claims … filed with the court shows how the sea forms a part of their lives, permeates their culture and is an integral part of their rich traditional customs or laws: explaining how the landscape was created and how it must be treated and cherished for all time.” The mood among the hundreds of people who attended the Federal Court sitting was one of elation. Preceding Justice Jagot’s determination, Chair of the Yaegl Traditional Owners Corporation Billy Walker spoke on behalf of the applicants: “We’ve come to the final chapters of the land [and Clarence River] order; and now the ocean. “This process was a very hard process: the compromises we’ve had with the state government – we’ve had long talks, we’ve had long walks; but now maybe we can walk together as one. “…Your honour, we thank you for bringing this court here to Yamba and join with all the Yaegl people here today, asking you to make the orders recognising Yaegl people’s native title.” The decision means that Yaegl people have the right: to access, to remain on and to traverse those areas; to access resources in those areas and to take, use, share, offer and exchange resources, including traditional trade, in those areas for non-commercial purposes; to maintain and to protect places, objects and areas of importance or significance under traditional laws and customs on those areas; and, to be accompanied by others on those areas. The determination notes that ‘traditional trade’ does not expand the right to take and use the resources of the inner extent native title area beyond ‘share and exchange’. The native title rights and interests will co-exist with the legal rights of others, including fisherman with fishing licenses and members of the public who access and use the area. The Yaegl people’s native title rights and interests will be held by the Yaegl Traditional Owners Aboriginal Corporation on behalf of the Yaegl people.