FACT CHECK: Port of Yamba-Clarence River cruise ship and international cruise ship terminal proposal

In online debates concerning the NSW Government's proposal to make the Port of Yamba an official cruise ship destination and possibly build an international cruise ship terminal I have noticed a few misconceptions creeping in - so this post is a brief fact check.

The misconceptions are coloured red.

* The “MV Caledonian Sky” cruise ship is smaller than the “Island Trader” cargo ship and not much bigger than the Manly Ferry.

“Caledonian Sky” at 4,200 gross tonnage, dead weight of 645t, 90.6m length, 15.3m width, 4.25 maximum draft is over twice the size of the “Island Trader” which is 485 gross tonnage, dead weight of 242t, 38.8m long, 9m wide and maximum draft of 2.8m.

The four Manly ferries are 70 metres in length, 12.5 metres wide, with draughts of 3.3 metres and displace 1,140 tonnes and, only operate in a deep water harbour.

* Cruise ships already come into the Clarence River.

There hasn’t been an ocean-going cruise ship carrying passengers enter the Clarence River in a good many years. There is some anecdotal information that one small cruise ship of indeterminate size entered the Clarence River sometime in the 1990s, but that appears to have been both the first and the last time that a local resident can recall its passage which ended with this vessel scraping its bottom on "Dirrangun" reef as it left. 

The last regular passenger service from Sydney to Port of Yamba ended in the mid to late 1950s when the small steamers operating on the NSW North Coast run were withdrawn.

Despite local media reports to the contrary, the “Caledonian Sky” has not entered the Port of Yamba in the past – this cruise ship’s scheduled visit in October 2018 will be her maiden voyage into the Clarence.

* There is not going to be any dredging of the Clarence River entrance or estuary if Port of Yamba becomes a cruise ship destination and an international cruise ship terminal is built.

A representative of the NSW Dept. of Transport raised eyebrows in apparent astonishment when I mentioned that particular belief. Although diplomatically silent the implication was clear - dredging would have to occur.

* Medium to small cruise ships will not have a problem entering the Clarence River because they will have a pilot on board.

In 2015-16 there were 18 ship visits to Port of Yamba, none were cruise ships and the majority of vessels piloted into the Clarence River came in for ship repair at Harwood Island.

However, even with a pilot on board a cruise ship may ground in a relatively narrow navigation channel. The “Regal Princess” grounded in Cairns Harbour in March 2001 as it sailed a 90m wide & est. 8.3 m deep navigation channel with a pilot aboard. The subsequent official investigation found that the dimensions of the Cairns port channel were too restrictive for the 32.25 m wide “Regal Princess”.

Because the Clarence River estuary is strongly tidal the position and width of its main navigation channel can vary and the Yamba-Iluka bar at the river entrance is problematic. 

The bar crossing appears to have been last dredged in 2004.

An Australian Navy tug 29m long, 8m wide with a draft of est. 3.4m grounded on the bar at the river mouth in October 1946 and from time to time cargo ships entering or leaving the Clarence have temporarily grounded when sand builds up outside the river entrance.

* Having cruise ships and a cruise terminal will raise personal incomes in the Lower Clarence Valley.

This argument is often put forward by governments pushing coastal development proposals.

St. John's (population over 108,000) - a regional port in Canada popular with small cruise ships - is currently conducting its own investigation into economic returns from cruise ship visits, because it was told this year that the average amount of money spent onshore by a cruise passenger can be as low as $28.20 and for a crew member as low as $20.79. Note: The Canadian dollar is roughly on par with the Australian dollar.

International cruise lines are usually the source of any financial information on passenger spending and industry observers tend to think that industry figures may be inflated. So it is not surprising to find one independent report published in 2015 states that passenger and crew spending in Cairns was 22 per cent lower than the figure supplied by Cruise Lines International Association (CLIA) a group representing the interests of cruise lines.

By the industry's own optimistic calculations, if all “Caledonian Sky” passengers come ashore then they should at a minimum spend in total between $4,750 and $5,937 during the five or so hours the ship is moored on the river in October next year.

Except that the cruise ship’s itinerary shows these approximately 114 passengers will have both breakfast and lunch on board ship before sailing away and, in the approx. three hours in between meals, will take a walk up to the Yamba Lighthouse at no charge, visit the Yamba Museum which has a gold coin entrance fee or cross to Iluka to wander the Nature Reserve up to Woody Head and back which is fee free - although it may be possible that the ship rents a mini-bus to transport passengers to Iluka wharf for return to the ship.

However, even then this hardly lives up to the cruise ship industry’s boast that each passenger spends on average $200-$250 a day in Australian regional ports.

* If ships the size of the "Rainbow Warrior" can navigate to the Harwood slipway then quite a few of the small similar size cruise vessels can safely do the same.

The second “Rainbow Warrior” was a yacht with 555 gross tonnage, 55m long, 9m wide with a draft of 3m. The third and current “Rainbow Warrior” has 855 gross tonnage, deadweight 180t, is 57.9m long, 11.3m wide and has a maximum draft of 5m.

To date I cannot find any cruise ships of similar size operating on the Australian east coast ocean route.

All east coast ships in P&O’s fleet are large ships, as are Holland America’s fleet. Princess Cruises’ ships are all large and, the  Royal Caribbean’s fleet is also composed of large ships. Ditto Carnival’s fleet and Celebrity Cruises’ ships. Norwegian Cruise Line, MCS Cruises and Cunard Line fleets contain only large vessels. While Oceania Cruises’ fleet is composed of somewhat smaller ships, but with drafts nudging 6m to 7m it probably wouldn't consider entering the Clarence . By comparison Noble Caledonia’s single cruise ship on the east coast is the ship with the shallowest draft found to date, but it may have difficulty coming over the bar in October 2018 and/or with swinging around to depart the estuary.

* Cruise lines are philanthropic - they will help people and the environment by giving money to a local cause.

Some but not all cruise lines do occasionally give money to institutions and causes within ports they regularly visit. It is often looked upon by port communities as 'guilty giving'. 

For example, in 2014 one of Carnival Cruise Line's ships severely damaged a section of pristine reef in the Cayman Islands. The next year the Carnival Foundation announced it was giving a $75,000 donation to the Cayman Islands-based Central Caribbean Marine Institute toward restoration of an ecologically distinct and globally endangered coral species. 

The Cayman Islands government had to step in before the cruise line would hand over $100,000 to the Cayman Islands National Trust towards the Magic Reef Restoration Project to cover the 11,000 sq feet of endangered coral that the "Carnival Magic" crushed.

If the international cruise ship industry genuinely had a social conscience then there wouldn't be reports like "Sweat Ships" (2002) which looks at the abuse of workers' rights aboard cruise ships.

* Modern cruising is really a form of eco-tourism

There is nothing inherently ecological about the design and functioning of a modern cruise ship. 

Modern cruise ships:
* predominately still use bunker fuel when underway and diesel/gas power when berthed if there is no dedicated shore electricity supply available to them; 
* give off emissions when these fossil fuels are burned and these emissions can and do sometimes exceed permissible levels of air pollution;
* emit underwater noise which disturbs whales and dolphins;
* are usually noisy when moored or berthed due to the need to generate power and/or provide entertainment for passengers;
* sewerage and waste water storage systems can sometimes malfunction or fail; 
* have been known to illegally dump sewerage whilst in port;
* will sometimes dump chlorinated swimming pool water overboard;
* sometimes illegally discharge oily waste into the ocean;
* will sometimes have issues with unlawful garbage disposal on some voyages; and
* anti-fouling paint on their hulls leaches into the waters at wharfs and affects the surrounding marine ecosystem.

* The state government will never be able to dredge the bar or the river because of Native Title.

Yes, Native Title covers the Clarence River from just below Ulmarra to the river mouth and out past the two breakwaters where it creates a 350m buffer around "Dirrangan" reef, as well as a narrower ocean water boundary out from the shoreline starting at Woody Head and going on down past Wooli.

Any cruise ship approaching the entrance to the Clarence River would be sailing in waters covered by Native Title.

However, Native Title rights are non-exclusive and so contain a number of qualifications. Therefore people of goodwill across the Clarence Valley and the wider Northern Rivers region will need to speak up in support of the Yaegl People's stated position if the Berejiklian Government decides to proceed with its international cruise ship terminal proposal.

Excerpt from Native Title Determination Yaegl People #2 Part B:

General qualifications on native title rights and interests

8. Native title does not exist in:

(a) Minerals as defined in the Mining Act 1992 (NSW) and the Mining Regulation 2010 (NSW); and

(b) Petroleum as defined in the Petroleum (Onshore) Act 1991 (NSW) and the Petroleum (Submerged Lands) Act 1982 (NSW).

9. The native title rights and interests described in paragraphs 6 and 7 do not confer:

(a) possession, occupation, use and enjoyment to the exclusion of all others;

(b) any right to control access to, or use of, the Determination Area.

10. The native title rights and interests in the Determination 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 the Yaegl People; and

(c) the terms of any Indigenous Land Use Agreement, which may be registered by the National Native Title Tribunal in respect of any part of the Determination Area made after the making of this Determination…….

Other interest which existed at the time Native Title over “Dirrangun” was determined are protected.

10. Other interests generally

(a) Rights and interests, including licences and permits, granted by the Crown in right of the State of New South Wales, the Clarence Valley Council or of the Commonwealth pursuant to statute or under regulations made pursuant to such legislation.

(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 including, but not limited to the following:

(i) any public right to fish;

(ii) the public right to navigate; and

(iii) the international right of innocent passage through the territorial sea.

(d) So far as is confirmed pursuant to section 18 of the Native Title (New South Wales) Act as at the date of the Determination, any existing public access to and enjoyment of:

 (i) waterways;

(ii) the bed and banks or foreshores of waterways;

(iii) coastal waters;

(iv) beaches;

(v) stock routes; and

(vi) 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 Determination Area and carry out actions as required in the performance of his/ her or its statutory or common law duty.

Sea claim judgment: Yaegl People #2 v Attorney General of New South Wales [2017] FCA 993 (31 August 2017)

Yaegl Traditional Owners Aboriginal Corporation expressing their opposition to a proposed cruise ship terminal at Yamba

The following media release was sent to NSW Minister for Maritime, Roads and Freight Melinda Pavey by way of her Twitter account at 7:15pm on 30 November 2017.

See https://twitter.com/NTSCORP_NSW/status/936145703474098176

Ntscorp Ltd 

Please see the following Press release from the Yaegl Traditional Owners Aboriginal Corporation expressing their opposition to a proposed cruise ship terminal at Yamba.

Press release

The Yaegl Traditional Owners Aboriginal Corporation RNTBC wish to respond to recent media reports about a proposed cruise ship terminal at Yamba, which is part of the draft Future Transport 2056 Strategy. Yaegl People are concerned about the lack of consultation that has occurred with the Corporation and the potential damage that the proposal will cause to significant sites.

The Yaegl Traditional Owners Aboriginal Corporation RNTBC does not support the construction of a cruise ship terminal at Yamba. The Yaegl People’s native title rights to the land and waters within the lower Clarence River, as well as over much of the land within their traditional country, was recognised by the Federal Court of Australia on 25 June 2015. The Yaegl People’s native title rights over their sea country was recognised by the Federal Court in 31 August 2017.

Any activities which may impact on the exercise of native title rights must be properly notified in accordance with the Native Title Act 1993 (Cth), and native title holders must be afforded certain procedural rights, including rights to comment, rights to be consulted and rights to negotiate.

The Yaegl Traditional Owners Aboriginal Corporation RNTBC is concerned that to date, no-one has approached the Corporation to discuss the proposal.

The Chairperson of the Corporation, Billy Walker, said ‘It appears as though decisions such as the construction of a cruise ship terminal, are being considered without any attempt to engage with or consult The Yaegl Traditional Owners Aboriginal Corporation RNTBC. The Corporation is responsible for ensuring that the Dirrungan, one of Yaegl People’s most significant sites, at the mouth of the Clarence River, is protected. There are also other sites of significance to the Yaegl People within the Clarence River, which would be damaged by the proposal.’

The recent Yaegl People’s native title determination over sea country included increased protections for the Dirrungan, including a 350 metre buffer zone to protect the Dirrungan from developments such as the cruise ship proposal.

The Corporation’s Office Manager and Yaegl man, Michael Randall, said ‘We haven’t been consulted yet. We have native title rights over the land and waters at the mouth of the Clarence River, including extending out to sea. It’s a requirement that we be consulted. We are opposed to any actions which might damage the Dirrungan. The State Government has agreed through our sea determination to protect the Dirrungan from destruction.’

Media contact: Michael Bennett (DM via NTSCORP Facebook)

Clarence Valley Council decides to open its door wide to the cruise ship industry

On 21 November 2017 at Clarence Valley Council’s ordinary monthly meeting Mayor Jim Simmons, Deputy Mayor Jason Kingsley and Crs. Richie Williamson, Arthur Lysaught, and Andrew Baker voted in effect to open council’s doors to the cruise ship industry by indicating in principal support for the Port of Yamba to be a designated cruise ship destination, with the possibility of establishing an international cruise ship terminal within the Clarence River estuary.

The debate in the chamber indicated that councillors received a number of emails on this subject from valley residents and that the majority of these expressed concerns about this Berejiklian Government proposal.

However, community concern was virtually ignored by both council administration and this group of five councillors hell-bent on doing Sydney's bidding after Nationals MP for Clarence Chris Gulaptis had reportedly lobbied on behalf of the proposal.

As usual Cr. Baker excelled himself when it came to the number of inaccurate statements he could pack into his participation in debate.

Concerned Iluka and Yamba residents now await this…….

Facebook, ABC North Coast, 21 November 2017:

Billy Walker The Yaegl Traditional Owners Aboriginal Corporation held a meeting last week where this issue was raised. Keep an eye out for our response in the local papers in the next week or so.

It is being suggested to Lower Clarence communities that inviting the cruise ship industry into the Clarence River estuary will bring financial gain to their towns - but will it?

At this month’s ordinary monthly meeting Clarence Valley Council will be considering whether or not to give in principle support to the NSW Government’s proposal to designate the Port of Yamba as a cruise ship destination and possibly build a cruise ship terminal in the Clarence River estuary.

The Berejiklian Government appears to be presenting this proposal as a way to increase the annual regional income of the Clarence Valley. But is it and will it?

Nowhere have I found any mention of the business model employed by the global cruise ship industry. An industry which seeks to create demand through the judicious use of political donations and paid lobbyists.

According to  Professor Ross Klein, Associate Dean for Graduate Programs and Research, Memorial University of Newfoundland; “Standing up to a cruise line can sometimes be difficult, especially given the industry’s generous contributions to political campaigns, their active lobbying efforts, and their degree of influence with mass media” [Klein, R. (2013) The Cruise Industry’s Business Model: Implications for Ports]

As an example, between 1997-2007 Cruise Line International Association spent US$10 million on lobbying the U.S Congress. 

In the first instance the business model used by cruise ship operators seeks to have passengers spend most of their money on-board the ship.

So many of the traditional services supplied on a cruise are no longer covered by the upfront cost of the fare and attract an additional charge per use.

Any land-based tours or shopping trips are organised by the cruise operator and not infrequently the cost is not absorbed by the cruise line so a fee for participation is paid by passengers directly to this shipping company.

The fee paid by the cruise operator to a land-based tour business contracted to supply the actual service usually ranges from as little as 10% up to an est. 50% of the fee paid by passengers.

Even when passengers leave the ship to wander around coastal zone towns you can bet that the cruise ship operator will have approached local businesses requesting a fee to include these businesses on a list of recommended shops/cafes/hotels/clubs - because that is part of the business model.

The business model is rapacious because it also seeks concessions and subsidies from the ports a cruise line visits.

From state government a cruise line expects and often receives reduced harbour fees & charges and from state and local government it expects upgrades in infrastructure worth literally millions of dollars, without giving a firm guarantee that it will continue to use a particular port as a genuine destination rather than as a short "technical call".

What is worse is that once the cruise industry becomes established in a small port there is evidence to suggest that the regular incursion of up to 350 passengers at a time into coastal towns sees a decrease in the number of land-based tourists, who now see these towns as crowded and impersonal - no longer offering an intimate holiday experience.

It is these land-based tourists who fill Yamba and Iluka’s camping grounds, motels, hotels and holiday units and, are more likely to patronise the full range of dining/entertainment/sporting experiences on offer. So to see a significant proportion of them replaced by cruise passengers over time is not likely to compensate for the risk of economic loss during peak holiday periods in the Lower Clarence.

The first small cruise ship is due in Yamba on or about 24 October 2018 and this is it’s published itinerary: arrive during breakfast, disembark to visit “Flinders Well, Yamba Lighthouse, and the Yamba Historical Museum” or “alternatively walk in the nearby Iluka Nature Reserve”, return to ship for lunch and depart in the afternoon.

Now I'm no economist but even I know that this itinerary doesn’t exactly ring the till in a big way for businesses in Yamba or Iluka.

This cruise ship, which is a repeat offender when it comes to reef and coral damage, is probably coming in on the high tide but as it expects to leave in the afternoon it is not going out with maximum water depth under its keel  -  which should ring some alarm bells.

Through the prism of this industry business model the Port of Yamba will not be seen as a boutique destination but merely as one more excuse to extend the number of nights passengers spend on a floating hotel being milked by the hotelier for as much money as possible before they finally leave the cruise at a major city port.

What Australian lobbyists for the cruise industry are not telling the regional ports they are currently attempting to smoodge is that when it comes to Australian east coast cruise destinations Sydney, Brisbane and Melbourne accounted for 65% of total passenger onshore visit days and 90% of the home port passenger onshore visit days. [Cruise Lines International Association (CLIA), 2016 & 2017]

Which means most of the spending money cruise ship passengers have in their wallets is more likely to be spent at large ports.

One cannot escape the suspicion that the health of the Clarence River estuary, existing coastal tourism revenue and safety of the Native Title reef Dirrangun are being placed at risk by this proposal, for what is essentially a dream of financial return for Lower Clarence communities rather than a solid reality.

Interested readers can find more information in the presentations included in the report of an international symposium held in 2013 which can be found at http://www.jbna.org/IS%20-%20Charleston-Report.pdf. For an idea of how many of these not-so-small cruise ships come into a regional harbour once berthing facilities are established see https://www.portauthoritynsw.com.au/port-of-eden/port-services-facilities/eden-cruise-schedule/.

Are the NSW Berejiklian Government & local Nationals preparing to trash the Clarence River Estuary?

If there’s one thing the NSW Nationals can be relied on to do it is to run with any short-sighted idea which involves the threat of environmental degradation and risk to regional water catchments.

Here we have them joining the Liberals in touting what appears to be a deal done in Sydney (with no genuine local community consultation) to bring international cruise ships into the environmentally sensitive Clarence River estuary – an act which would require a significant degree of initial and ongoing dredging to maintain access, with perhaps the partial dismantling of one of the internal training walls which were built to direct flood water flows.

Even cruise operators with smaller vessels will demand a guarantee of risk free access and some form of terminal – demands which would see existing local tourism along with commercial and recreational fishing disrupted and perhaps diminished.

It seems that Nationals MP for Clarence Chris Gulaptis has all but forgotten that just last year he was not in favour of the last attempt to co-opt the Lower Clarence River for the personal gain of outside financial interests.

Perhaps he needs reminding that ships that meet his specifications such as this one pictured below would still require estuary modification and shoreline development which is also unlikely to “tick any of the social or environmental boxes he once thought important.

As the average small cruise ship would exceed length overall LOA 30 metres they would all require compulsory pilotage to and from the river entrance to their berth.

Tonnage: 4,591 tons, Length: 103.7 m, Beam: 16.0 m. Draft 4.5 m, All Berths: 302.

Local residents are aware that Mr. Gulaptis has been lobbying Clarence Valley Council on the matter of cruise ships having access to and use of the river estuary. Perhaps he might like to inform us all exactly on whose behalf he has been doing this lobbying? And declare if he is receiving some form of consideration or financial benefit from such lobbying?

The Daily Examiner, 25 October 2017:

THE FIRST cruise ship that could test the Port of Yamba's passenger facilities could arrive before the end of the year, says Member for Clarence Chris Gulaptis.

"I've heard there could be a cruise ship coming this year,” Mr Gulaptis said.

But he was unsure of the any details of the size or type of vessel that could be coming.

Mr Gulaptis was with the NSW Minister for Roads, Maritime and Freight, Melinda Pavey, and Minister for Transport and Infrastructure, Andrew Constance, yesterday when they announced Yamba and Coffs Harbour were being considered as potential international cruise ship terminals for the NSW Mid North Coast.

Mrs Pavey announced the start of investigations as part of the launch of the government's Future Transport 2056 strategy.

"This is a major step, with the need for a facility being recognised in the 10 to 20-year horizon, so early investigations can begin now,” Mrs Pavey said.

The new facility has the potential to link in with North Coast tourist hotspots and part of the process will look at how to integrate the proposed port with the wider area.

"The cruise industry is booming and is set to get bigger in coming years.

"A cruise terminal would give the region a share of that industry,” Mr Constance said.

Despite the minister's optimism, Mr Gulaptis said there were lot of obstacles to overcome.

"Just where passengers would embark and disembark is not known,” he said.

"Goodwood Island could handle the size of the vessels, but its facilities have been used for live cattle exports and it's well away from Yamba.

"The only other place I can think of is at the marina on the other side of the wall, where the fishing boats moor.”

He said any use of the river would need approval of its owners, the Yaegl People, and the ships could not impact the Dirrangun reef, which was sacred to them.

He said the vessels would be much smaller than the big cruise liners.

"I think the maximum draught at Yamba is about five metres, so that should limit the size of the vessels to no bigger than 5000 tonnes,” he said.

The prospect of cruising liners coming to Yamba alarmed environmentalists such as Iluka's Ian Gaillard, who was a vocal opponent of a proposal that emerged last year to build a megaport in the Clarence Estuary.

He said people may think cruise liners coming to Yamba could represent progress, but in reality, it would be a retrograde step.

"Cruise ships bring with them some of the worst excesses of modern life,” he said.

”The danger for the local populace is that once these things are established, they change the amenity of the place forever.”

NSW Minister for Roads, Maritime and Freight Melinda Pavey is obviously confident that she and her cronies will be able to expand Port of Yamba by stealth.

Perhaps someone should remind her that Northern Rivers communities tend to jealously guard the existing aesthetic, environmental, cultural, social and economic values of their waterways and lands.

Like Chris Gulaptis, last year Cr. Jim Simmons was mindful of the environmental and cultural issues associated with dredging the entrance to the river and estuary.

Look at him now..... 

Clarence valley mayor Jim Simmons reckons Yamba would be a great cruise ship destination.

Clarence Valley’s new mayor Jim Simmons was quick to jump on board the idea to support Yamba and Grafton's tourist credentials. “Oh yeh, we’d give it  a go at Grafton.  We’ve got the best beaches up here and I think Coffs Harbour has had its fair share of things and it’s time other places got a go,” he says.

The persistence and quiet dignity of the Yaegl community in their long struggle to achieve Native Title over traditional land and waters has seen Part B of Yaegl People #2 claim determined in their favour

Map showing Native Title area surrounding Dirrangun

ABC News, 31 August 2017:

History has been made on the New South Wales north coast today with the granting of a native title claim over the ocean.

The Yaegl people of the lower Clarence first started native title proceedings more than 20 years ago and two years ago the land was granted but now, for the first time in NSW, their rights to a stretch of sea have also been recognised.

The claim involves more than 90 kilometres of coastline between Woody Head and Wooli and extends 200 metres out to sea.

The decision means native title holders cannot be prohibited or restricted from carrying out fishing for personal, non-commercial needs.

It does not affect commercial fishing operations or public access to beaches.

What does this native title allow?

The right to access, traverse and remain on the ocean

The taking, using, offering, sharing and exchanging of resources in the area for non-commercial purposes

The right to maintain and protect places, objects and areas of importance under traditional laws and customs

The right to be accompanied by others on those areas

Claimant spokesperson and Yaegl man Billy Walker said the granting of native title means freedom and independence for the Yaegl people.

"The Yaegl people can proudly say I'm going to go fishing, I'm going to go worming. I'm going to go and get pippies," he said.

"I'm going to do what I can on the foreshores and out at sea without anybody looking over our shoulders telling us what to do and what we can't do.

"It's … a very historic day not only for the Yaegl people but also sets a precedent for other claim groups up and down the east coast of NSW."

Mr Walker said the result gave protection to the Dirrangan reef, at the mouth of the Clarence, which "we've always wanted to protect from day one".....

NTS Corp, the native title provider in NSW, said the Yaegl people will continue to self-regulate their fishing to ensure the sustainability of the fisheries as they have for thousands of years.

Note:

Part B of Yaegl People #2 was resolved by consent determination on 31 August 2017. The applicants on behalf of the Yaegl People were Lillian Williams, Ron Heron, Vivienne King, Eileen Mcleay, Judy Breckenridge, Deidre Ann Randall, William Walker, Noeline Kapeen, Ferlin Lee Laurie, Clarence Randall, Ken Laurie. View orders  with all four maps.

The Yaegl Traditional Owners Aboriginal Corporation RNTBC has consented in writing to hold the 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)

Why are we still refusing to fully honour the spiritual and cultural relationship that traditional owners have to the land in Australia?

It doesn’t matter to the Turnbull Government that science declares that Aboriginal Australia has existed since time immemorial or that indigenous culture has existed on this continent longer than any other culture which is now part of multicultural Australia -  it stubbornly refuses to genuinely honour the spiritual and cultural relationship that traditional owners have with the land.

Native Title law now tainted by Adani

June 15, 2017

MEDIA RELEASE
14 June 2017

Traditional Owners slam passage of Native Title amendments

Traditional Owners fighting Adani’s proposed coal mine have expressed profound disappointment at the passage of Attorney General Brandis’ amendments to the Native Title Act, stressing that while Mabo’s legacy has been diminished they will continue to fight for their rights.

Senior spokesperson for the W&J Traditional Owners Council, Adrian Burragubba, says, “Adani’s problems with the Wangan and Jagalingou people are not solved this week. The trial to decide the fate of Adani’s supposed deal with the Wangan and Jagalingou Traditional Owners is scheduled for the Federal Court in March 2018.

“Our people are the last line of legal defence against this mine and its corrosive impact on our rights, and the destruction of country that would occur.

“Senator Brandis has been disingenuous in prosecuting his argument for these changes to native title laws, while the hands of native title bureaucrats and the mining lobby are all over the outcome.

“This swift overturning of a Federal Court decision, without adequate consultation with Indigenous people, was a significant move, not a mere technical consideration as the Turnbull Government has tried to make out.

“It is appalling and false for George Brandis to pretend that by holding a ‘workshop’ with the CEOs of the native title service bodies, he has the unanimous agreement of Traditional Owners across Australia. No amount of claimed ‘beseeching’ by the head of the Native Title Council, Glen Kelly, can disguise this.

“The public were not properly informed about the bill, and nor were Indigenous people around the country, who were not consulted and did not consent to these changes.

“We draw the line today. We declare our right to our land. There is no surrender. There is no land use agreement. We are the people from that land. We’re the rightful Traditional Owners of Wangan and Jagalingou country, and we are in court to prove that others are usurping our rights”, he said.

Spokesperson for the W&J Traditional Owners Council, Ms Murrawah Johnson, says, “Whatever else this change does, we know that the Turnbull Government went into overdrive for Adani’s interests.

“Brandis’ intervention in our court case challenging the sham ILUA was about Adani. Most of what Senator Matt Canavan had to say in argueing his ill-informed case for native title changes was about Adani. The Chairman of Senate Committee inquiring into the bill, Senator Ian McFarlane, referring to the native title amendments as “the Adani bill” was about Adani. And the PM telling Chairman Gautam Adani that he’d fix native title was about Adani”.

“We are continuing to fight Adani in court and our grounds are strong. If anyone tells you this is settled because the bill was passed, they are lying”, she said.

Adrian Burragubba says, “The Labor Opposition seems to understand this, even though they supported passage of the bill. Senator Pat Dodson went so far as to say this bill does not provide some kind of green light for the Adani mine, as some suggest.

“Pat Dodson acknowledged that W&J have several legal actions afoot against Adani and we are glad that in the midst of this dismal response to the rights of Indigenous people some MPs, including the Greens who voted against the bill, recognise the serious claim we have to justice.

Mr Dodson said in the Senate that: “most of this litigation will be entirely unaffected by the passage of this bill. In particular, there are very serious allegations of fraud that have been made against Adani regarding the processes under which agreements with the Wangan and Jagalingou people were purportedly reached. And those proceedings, which may impact on the validity of any ILUA, will only commence hearings in March next year. Other legal action is also underway, including a case challenging the validity of the licences issued by the Queensland government.”

This week researchers from the University of Queensland released a report titled ‘Unfinished Business: Adani, the state, and the Indigenous rights struggle of the Wangan and Jagalingou Traditional Owners Council‘.

For more information and to arrange interviews:  Anthony Esposito, W&J Council advisor – 0418 152 743.

Yindjibarndi People granted exclusive native title over their traditional lands

A short entry by the Federal Court of Australia heralds exclusive native title for the Yindjibarndi People over their traditional lands in the Pilbara region of Western Australia.

Original Word Document (1.6 MB)

2017FCA0803-summary

Link to case history

FEDERAL COURT OF AUSTRALIA

Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803

File number:	WAD 6005 of 2003
Judge:	RARES J
Date of judgment:	20 July 2017

ORDERS

THE COURT ORDERS THAT:

1.    The parties consult and seek to agree and prepare a draft determination of native title for the Court to make under s 225 of the Native Title Act 1993 (Cth) to give effect to the reasons for judgment delivered today.

2.    The proceeding be listed for case management on 17 August 2017 at 11.30am.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

In the judgment Justice Rares stated in part:

54    I am satisfied, having considered all of the evidence, that this explanation of spiritual connection reflects both important traditional laws, that the Yindjibarndi acknowledged, and traditional customs, that they observed, at the time of sovereignty and continue to acknowledge and observe today. The explanation neatly captures the essence of the relationship of the Yindjibarndi to their country and their spiritual obligation, embedded in their traditional laws and customs, to protect that country, including from the presence and activities on it of strangers (or manjangu) unless the stranger(s) first obtain(s) permission from Yindjibarndi people.

55    In addition, I am satisfied that, if a stranger were free to enter Yindjibarndi country without permission, under those Yindjibarndi normative laws and customs that have continuously applied over the same time period, he or she could “hurt” the country by violating the Birdarra law, even if unintentionally; for example, by entering a sacred or restricted place, or taking something, such as a resource or animal, from the country. And, those laws and customs thus require the Yindjibarndi to protect their country from a manjangu gaining access to it or its living or inanimate resources without permission of a Yindjibarndi elder.

56    Moreover, I am satisfied by all of the evidence that the Yindjibarndi have continuously (since before sovereignty) acknowledged traditional laws and observed traditional customs relating to the presence, role and power of the spirits of the Marrga and “old people” in and over Yindjibarndi country.

149    I am satisfied that, on the evidence before me, the Yindjibarndi continue to acknowledge their traditional laws and observe their traditional customs that have existed since before sovereignty that a manjangu must seek and obtain permission from an elder before entering on Yindjibarndi country or carrying out activity there (except if the person is simply driving through).

150    Moreover, that conclusion is supported by the evidence of Dr Palmer, which I accept. He concluded that the Yindjibarndi had the right to exclude others who are not Yindjibarndi “and are consequently identified as manjangu”, but he also found that they had abandoned the pre-sovereignty right to put a trespasser to death.

151    Accordingly, I find that the Yindjibarndi have the exclusive right to control access to Yindjibarndi country and, in particular, to the claimed area.

PHOTO: The Yindjibarndi land extends across an inland section of the western Pilbara, including parts of the Millstream National Park. (ABC North West WA: Joseph Dunstan)
The response of that right-wing warrior Andrew Forest of Fortescue Metals was not long in coming.

The Australian, 21 July 2017:

A landmark court decision could set a new template for the way the mining industry approaches ­native title negotiation, after ­Andrew Forrest’s Fortescue Metals Group lost a long running claim over its Pilbara mining hub.

Fortescue could be on the hook for hundreds of millions of dollars in past and future royalties, following the biggest native title ruling to hit an Australian miner for years.

Even so, Fortescue yesterday moved to hose down concerns about the impact of a native title ruling over its Solomon mining hub, noting that it did not expect the ruling to have any “material” financial impact on or inhibit current or ­future operations.

The ruling gives the Yindjibarndi exclusive native title rights over Fortescue’s Solomon mining hub in Western Australia that ­accounts for at least 70 million tonnes of the company’s annual iron ore output.

While the ruling does not prohibit Fortescue from continuing to operate the Solomon mines, it does potentially leave Fortescue exposed to a compensation claim over the hundreds of millions of tonnes of iron ore mined at the project to date as well as possible royalties over future production.

The Guardian, 21 July 2017:

Fortescue Metals Group is likely to appeal against a determination of exclusive native title for Yindjibarndi people over land in the Pilbara which encompasses its Solomon Hub mine.

On Thursday the federal court ruled in favour of the Yindjibarndi traditional owners, awarding exclusive rights and interests over about 2,700 sq km of unclaimed crown land, which encompasses FMG’s $110bn mine.

The company responded on Thursday that it had “no commercial concerns and do not anticipate any material financial impact following the court’s determination,” but on Friday its chief executive suggested it would appeal.

Nev Power told ABC local radio he thought the court’s decision was wrong.

“I think we are likely to appeal,” he said. “It’s a very unusual decision in that the judge has found exclusive native title possession on this land, which we think is unlikely to be the case. So we will be looking at it definitely and considering an appeal.”

Following the decision on Thursday FMG shares dropped 19c to $5.19, and opened at $5.05 on Friday.