FEDERAL COURT OF AUSTRALIA

Native Title - application for determination that no native title rights and interests exist - whether any native title rights exist.

Native Title Act 1993 - s 74

Aboriginal Land Rights Act 1983 (NSW) - ss 36, 40 and 40AA

APPLICATION FOR DETERMINATION OF NATIVE TITLE MADE BY THE METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL

NG 6001  of   1998

JUDGE:          BEAUMONT J.

PLACE:          SYDNEY

DATE:            31 MARCH 1998

ORDERS:

1.         It be determined that native title does not exist in relation to the subject land.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

BEAUMONT J:

There is before the Court an application for a determination that no native title rights and interests exist in relation to land situated at Duffy's Forest near Sydney known as Lot 375 Booralie Road and Joalah Road, Duffy's Forest.  The land is situated in the Local Government area of Kur-ring-Gai in the Parish of Broken Bay, County of Cumberland, in the State of New South Wales.  The applicant is the Metropolitan Local Aboriginal Land Council, which is the owner of an estate in fee simple in the land, subject to the restrictions contained in ss 40 and 40AA of the Aboriginal Land Rights Act 1983 (NSW) (“the New South Wales Act”).  I will refer shortly to the significance of those provisions.

The land, which is of an area of approximately 2.3 hectares, is a vacant parcel of undulating land, generally in its natural state throughout.  It was transferred to the Metropolitan Local Aboriginal Land Council pursuant to the provisions of the New South Wales Act.  Under that Act, provision is made in Division 2 of Part 6 for land rights claims to Crown lands.  By s 36(1), claimable Crown lands are defined in several respects, including:

“...claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division:

...

(d)        do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act or the Native Title (New South Wales) Act 1994.”

Section 36(5) provides that a Crown Lands Minister, to whom a claim for lands has been referred under s 36(4), shall, if the Minister is satisfied that the lands are claimable, grant the claim by transferring the land to the claimant Aboriginal Land Council.

The subject lands were claimed pursuant to this provision and, as has been noted, transferred by the Minister pursuant to s 36(5).  They had not been the subject of any previous grant of freehold.  Therefore, I proceed upon the footing that any claim for native title has not been extinguished.  However, reference should be made, for present purposes, to the provisions of ss 40 and 40AA of this legislation as follows:

“40      Disposal of land restricted

(1)        The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it, except in accordance with this Division.

(2)        Any sale, exchange, lease, disposal or mortgage of, or other dealing with, land in contravention of this Division is void.

(3)        This Division does not apply to land purchased as an investment under section 29 or 31.

40AA  Disposal of land subject to native title restricted

(1)        The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).

(2)        Subsection (1) does not apply to or in respect of the lease of land by the New South Wales Aboriginal Land Council or one or more Local Aboriginal Land Councils to the Minister administering the National Parks and Wildlife Act 1974 under Part 4A of that Act in accordance with a condition imposed under section 36A(2).”

As has been seen, the Aboriginal Land Council cannot deal with the land vested in it if it is  subject to native title rights under s 36(9) or (9A) unless the land is the subject of an approved determination of native title under the Native Title Act 1993 (“the Commonwealth Act”).  Section 36(9) of the New South Wales Act provides that:

“Except as provided by [s 36(9A)] any transfer of lands to an Aboriginal Land Council... shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.”  (Emphasis added).

Section 36(9A) deals with lands under the Western Lands Act 1901 (NSW), which is not presently material.

By way of background, the applicant seeks the present determination because it has entered into a contract to sell the lands, subject to compliance with the provisions of s 40AA(1).   The applicant needs a determination that no native title exists in order to deal with the land.  As a result of Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, the National Native Title Tribunal (“Tribunal”) is not in a position to make an enforceable determination in this matter.  The President of the Tribunal has referred the matter to the Court pursuant to s 74 of the Commonwealth Act for determination.  The other party to the application, the New South Wales Aboriginal Land Council (“the NSWALC”), neither consents nor opposes the determination.  For completeness, I should mention at this stage that an application was made by Mr Dominic Kanak to be joined as an additional party to the proceedings but, for reasons I have earlier given, I dismissed his notice of motion.

The evidence before the Court consists of documentary material being the Tribunal's file, together with an affidavit sworn by Bruce Stephen Woolf on 31 March 1998 (the solicitor for the applicant) and an affidavit sworn on 31 March 1998 by Simon Blackshield (the senior legal officer of the NSWALC).  The history of the matter is recited in the statement of facts, being document 59 in the Tribunal's file, in the following terms:

“1.       The applicants are the Metropolitan Local Aboriginal Land Council.  The Metropolitan Local Aboriginal Land Council is a Local Aboriginal Land Council constituted under the NSW Aboriginal Land Rights Act 1983 having responsibility as a Local Aboriginal Land Council under that Act covering a large area in the Sydney basin including the subject land.

2.         The application was lodged with the Tribunal on 6 August 1997 and accepted by Jane Mussett as delegate of the Registrar on 21 August 1997.

3.         The Tribunal in fulfilment of its statutory obligations notified the section 202 Representative Body for NSW, national and regional ATSIC offices and published notices in both national and regional newspapers.  The end of the period specified in the notice under section 66 of the Native Title Act 1993 expired on 10 November 1997 and no native title claimant/s had come forward, therefore the application was taken to be unopposed.

4.         The parties to the application are the Metropolitan Local Aboriginal Land Council (the applicants) and the NSW Aboriginal Land Council.

5.         An inquiry was held on 8 December 1997 presided over by Mr Kim Wilson, Tribunal Member and attended by the parties to the application.  At this time Mr Wilson was informed by the NSW Aboriginal Land Council that they had been approached by a potential native title holder.  The inquiry was adjourned to give time for this matter to be discussed, with the parties given liberty to advise the Tribunal when the matter should be reconvened.

6.         In correspondence dated 19 December 1997 Metropolitan Local Aboriginal Land Council states that the land in question is land that lies within the tribal area of the Kuringgai and further that it has no information of which it is aware supporting the existence of the Kuringgai today.

7.         In correspondence dated 17 December 1997 the NSW Aboriginal Land Council indicated that it was not aware at that date of any persons asserting native title rights and interests over the area subject to application having come forward to express any views in relation to the application.

8.         The applicants have asked for a determination that no native title rights and interests exist in relation to the land.

9.         In correspondence dated 24 December 1997 the applicants have included a historical search of the land and assert that they do not rely on prior dealings with the land in this application.  The search indicates that the subject title is the first freehold title and that prior title was Crown land.”

The affidavit of Mr Woolf gives further background to the application;  in particular, it gives details of the terms of the contract of the sale of the land.  It refers also to correspondence with Mr Kanak in which  Mr Kanak claims to have an interest in the matter.  I need not recite Mr Kanak's claims as I have already described them in my reasons for dismissing his notice of motion.

The affidavit of Mr Blackshield also speaks of communications he had with Mr Kanak, covering ground similar to that dealt with in my earlier reasons dismissing the application for joinder. 

Mr Blackshield's affidavit gives evidence that, by newspaper advertisement lodged in December 1997, the NSWALC sought to make contact with all members and descendants of the Ku-ring-gai people in the context of "a native title matter which has arisen within the traditional lands of the Ku-ring-gai people (northern suburbs of Sydney)”.  Mr Blackshield went on in his affidavit to say that no person asserting native title rights and interests over the land had approached him to express any views in relation to the present application.

I am satisfied on the material before me that I should make the determination sought.  I am also satisfied that I have jurisdiction to make such an order by virtue of the combined operation of the provisions of ss 24(1), 61(1), 66(2), 66(3)(a) and 252(1), of the Commonwealth Act. 

ORDERS

I order, therefore, that it be determined that native title does not exist in relation to the subject land.

Associate:

Dated:              31 March 1998