FEDERAL COURT OF AUSTRALIA

Darkinjung Local Aboriginal Land Council [2001] FCA 1124

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 69

Aboriginal Land Rights Act 1983 (NSW) s 40AA

DARKINJUNG LOCAL ABORIGINAL LAND COUNCIL v NEW SOUTH WALES ABORIGINAL LAND COUNCIL

N 6010 of 2001

WHITLAM J

SYDNEY

10 AUGUST 2001

THE COURT ORDERS THAT:

1.                  Native title does not exist in relation to the land described as:

(a)        Lot 632 Deposited Plan 823717; and

            (b)        Lot 650 Deposited Plan 1017542.

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

REASONS FOR JUDGMENT

1                     This is an application filed on 6 September 2000 for a determination that no native title rights and interests exist in relation to two plots of land in Wyong (“the subject land”). The subject land is described in the application as (1) Lot 632 Deposited Plan 823717 and (2) Reserve 91483.  The second plot is now more accurately referred to as Lot 650 Deposited Plan 1017542.  Both plots are located approximately 48 kilometres south-west of Newcastle in the local government area of Wyong, Wallarah Parish, in the County of Northumberland, North Entrance.  They cover an area of about 40 hectares.

2                     The applicant, the Darkinjung Local Aboriginal Land Council, was granted title to the subject land under the Aboriginal Land Rights Act 1983 (NSW) (“the ALR Act”).  It is a body corporate constituted under the ALR Actand owns land in twenty-seven parishes within the county of Northumberland.  It has over 800 members and acts as custodian of the spiritual and cultural aspects of land within its boundaries.  The applicant also advises the National Parks and Wildlife Service on cultural issues relating to its land.

3                     The applicant now wishes to sell the subject land in order to raise money for the welfare of its members.  Under s 36(9) of the ALR Act:

“any transfer of lands to an Aboriginal Land Council under this section 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.”

4                     Section 40AA(1) of the ALR Act restricts disposal of land vested in Aboriginal Land Councils under s 36(9) as follows:

“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).”

5                     The evidence relied on in support of the application is contained in an affidavit of David Pross, the chairperson of the applicant, made on 3 August 2001 and an affidavit of Bruce Stephen Woolf made on 10 August 2001.  In addition, in the Court file there is a letter from the National Native Title Tribunal (“the Tribunal”) to the Court dated 22 November 2000 and a letter from the Tribunal to the solicitors for the applicant dated 25 July 2001.

6                     The material attached to Mr Woolf’s affidavit shows that, in accordance with s 66(3)(a) and (d) of the Native Title Act 1993 (Cth) (“the NT Act”), the Native Title Registrar (“the Registrar”) has given notice containing details of the application to the appropriate persons or bodies and has notified the public in the prescribed way.  It is not necessary to set out the parties notified.  I am satisfied that proper notice was given.

7                     I note that the notification letters also attached a copy of the relevant notice which indicated that if the recipient wanted to become a party to the Federal Court application, and thereby have their rights and interest in the area recognised in the determination, they were required to do so on or before 28 February 2001.  It was noted that the permission of the Court would be required to become a party after that date.  The letter from the Tribunal to the applicant dated 25 July 2001 corrected a mistake in the description of the subject land in the Registrar’s notice.

8                     On 12 December 2000 the Minister for Land and Water Conservation filed a notice that he wished to cease to be a party and by the expiry of the notification period, 29 February 2001, there were no further party applications.  At the directions hearing on 20 July 2001 however I made an order, by consent, that the New South Wales Aboriginal Land Council, in its capacity as the New South Wales native title representative body, be joined as a party to the application.

9                     Pursuant to s 86G of the NT Act, the Court may make an order:

“(1)     If, at any stage of a proceeding 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.

Note:   If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

(2)       For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.”

10                  At the hearing this morning, the application was unopposed as is reflected in the letter from Susan Phillips, counsel for the respondent, to the Registrar of the Court, which is undated and was handed up by the applicant’s solicitor.

11                  Accordingly, I make an order that no native title exists in relation to the land described as Lot 632 Deposited Plan 823717 and Lot 650 Deposited Plan 1017542.

Associate:

Dated:              24 August 2001