FEDERAL COURT OF AUSTRALIA

Metropolitan Local Aboriginal Land Council [2001] FCA 605

NATIVE TITLE – application for determination that no native title rights and interests exist – whether any such native title exists.

Native Title Act 1993 (Cth) s 66 and 86G

Aboriginal Land Rights Act 1983 (NSW) s 36(9), 36(9A) and 40AA(1)

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

N 6003 of 2000

CONTI J

SYDNEY

23 MAY 2001

                             APPLICATION FOR DETERMINATION OF NATIVE TITLE

                             MADE BY THE METROPOLITAN LOCAL ABORIGINAL

                             LAND COUNCIL

THE COURT ORDERS THAT:

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.

                             APPLICATION FOR DETERMINATION OF NATIVE TITLE

                             MADE BY THE METROPOLITAN LOCAL ABORIGINAL

                             LAND COUNCIL

REASONS FOR JUDGMENT

1                     Before me is an application dated 14 March 2000 for a determination that no native title rights and interests exist in relation to land situated at Forestville known as Lots 8, 9, 10 and 11 Bantry Bay Road, Forestville. The land is situated in the Local Government area of Warringah, County of Cumberland, in the State of New South Wales. The Applicant is the Metropolitan Local Aboriginal Land Council (“MLALC”), which is the title holder of the subject land.

2                     The MLALC is the Body Corporate constituted under the New South Wales Aboriginal Lands Rights Act 1983 (NSW), having been proclaimed in 1983. The MLALC’s constituted area encompasses some 41 parishes within the Counties of Hunter, Cumberland and Northumberland. It has over 400 members and acts as a custodian of the spiritual and cultural aspects of land within its boundaries. The MLALC also acts as an adviser to the National Parks and Wildlife Service regarding cultural issues to lands within MLALC’s boundaries.

3                     The MLALC wishes to deal with the subject land by way of leasing part of such land to the Cornerstone Church, and using the moneys obtained therefrom to benefit the welfare of the members of the MLALC. The Aboriginal Land Council or a Local Aboriginal Land Council cannot deal with land vested in it if the land is subject to Native Title Rights under s 36(9) or (9A) of the Aboriginal Land Rights Act 1983 (NSW), unless such land is the subject of an approved determination of native title under the Native Title Act 1993 (Cth): see s 40AA(1) Aboriginal Land Rights Act 1983 (NSW). Section 36(9) of the New South Wales Act states:

“Except as provided by subsection (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.”

Section 40AA(1) of the New South Wales Act states:

“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).”

4                     The Applicant requires a determination that no native title exists in order to deal with the land in the manner I have indicated in [3] above. The evidence before the Court consists of documentary material including an affidavit sworn by Mr Bruce Stephen Woolf (the solicitor for the Applicant) on 16 May 2001, and an affidavit sworn by Robert Welch (Chairperson of MLALC) on 15 May 2001.

5                     The affidavit of Mr Woolf provides relevant information concerning the Native Title Tribunal’s fulfilment of the relevant statutory obligations. On the evidence before me, the Tribunal has provided copies of the application to the New South Wales Minister for Land and Water Conservation and to the representative body for the area, the New South Wales Aboriginal Land Council. The Tribunal has also notified the registered Aboriginal and Torres Strait Islander Body for the area, the Commonwealth Attorney General and Warringah Council. A letter from the Tribunal to the Deputy Registrar of the Federal Court of Australia dated 16 May 2000 provides a copy of the Notice under s 66 of the Native Title Act 1993 (Cth) which confirms that the Tribunal notified the public in the required manner. Such notice indicated that if any party desired to have their native title rights and interests recognised in the Federal Court’s determination, they would need to become a party to the application on or before 30 August 2000. On 31 August 2001, the Deputy District Registrar of the Federal Court advised Mr Woolf that no notices of intention to become a party were filed during the notification period.

6                     When the matter was called on this morning, the application was unopposed. Pursuant to s 86G of the Native Title Act 1993(Cth), the Federal Court may make the following order:

“(1)     If, at any stage of the proceedings in relation to an application under section 61, but after the end of the period specified in the notice given under section 66:

(a)               the application is unopposed; and

(b)               the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court;

the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing."

On the evidence before me, I am satisfied that the application should be allowed and an order be made that no native title claim exists over the subject land. The relevant search of the register of the National Native Title Tribunal discloses no claimant native title application in the Local Government area of Warringah. Accordingly, the Court has jurisdiction to make the order sought.

Associate:

Dated:              23 May 2001