FEDERAL COURT OF AUSTRALIA

Darkinjung Aboriginal Land Council v Minister for Lands and Ors

[2005] FCA 1861

DARKINJUNG ABORIGINAL LAND COUNCIL v MINISTER FOR LANDS AND NSW NATIVE TITLE SERVICES LTD AND WYONG SHIRE COUNCIL

NSD 1249 OF 2004

JACOBSON J

7 DECEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1.          No native title exists in Lot 562 in Deposited Plan 1010370 at Blue Haven, Local Government Area of Wyong, Parish of Munmorah, County of Northumberland.

2.          Each party pay its own costs.

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 made pursuant to s 61 of the Native Title Act 1993 (Cth) (“Native Title Act”) for a determination that no native title exists in relation to land in folio identifier 562/1010370 in the parish of Munmorah, land district of Gosford in the local government area of Wyong County, Northumberland. 

2                     The applicant is the registered proprietor of the land having been granted the land pursuant to Aboriginal Land Claim 5496 under the Aboriginal Land Rights Act 1983 No.2 (NSW) (“Aboriginal Land Rights Act”).  The land comprises approximately 8.75 hectares and abuts the Pacific Highway.  The land is held subject to the provisions of s 40 and s 40AA of the Aboriginal Land Rights Act.  The effect of that is to encumber the land with any native title interests which exist and it is for this reason that the applicant requires a determination that the land is not subject to native title.

3                     The application was supported by an affidavit of Mr Bruce Woolf, solicitor, sworn on 14 October 2005 and a further affidavit of Mr Duncan Stewart, solicitor, sworn on 1 December 2005. 

4                     The requisite notices under s 66 of the Native Title Act were given.  The expiry date under s 66(10)(c) of the Native Title Act was 19 January 2005.

5                     There are three respondents to the application.  Only the first and second respondents appeared before me today.  They provided written notification which satisfies the provisions of s 86G(2) of the Native Title Act.  The third respondent is the Wyong Shire Council.  It became a respondent by virtue of the provisions of s 84(3)(b) of the Native Title Act.  There is no appearance by the Wyong Shire Council and it did not provide a written notification in the terms referred to in s 86G(2) of the Native Title Act. 

6                     However, the Court file records that a case management conference was held on 11 July 2005 before a Registrar of the Court.  It was noted that the Council neither supports nor objects to the non-claimant application which is the subject of these proceedings but that the Council was joined as a party to be kept abreast of developments.  There was evidence which satisfies me that the Wyong Council was informed of a directions hearing held on 20 October 2005, when this matter was listed for hearing today.  The Council did not appear at the hearing. Indeed, it is clear that it has played no active part in the proceedings.

7                     It seems to me that notwithstanding that I do not have a written notification from the Wyong Shire Council, I do of course have written notification from each of the first and second respondents and that it is therefore appropriate for me to treat the application as now unopposed in the sense referred to by Justice Sackville in Kennedy v State of Queensland [2002] FCA 747 at [25].  I am therefore prepared to treat the application as an unopposed application pursuant to s 86G of the Native Title Act. 

8                     However, for more abundant caution, Mr Beckett of counsel who appeared for the applicant took me to the evidence filed in support of the application and I would be prepared to make the orders sought by the applicant as if this were a final hearing of the application itself.

9                     I am satisfied that John Elmhirst Price made an application for a homestead farm on 8 September 1913 pursuant to s 119(1) of the Crown Lands Consolidation Act 1913 (NSW) and that the application was confirmed on 29 May 1914 and that his lease of Portion 56 commenced on that date. 

10                  I am also satisfied that Portion 56 was later subject to a number of reservations which reduced the size of the area.  However, a comparison of the plan of Portion 56 which was the subject of Mr Price’s lease reveals that Lot 562 in Deposited Plan 1010370 (that is to say folio identifier 562/1010370) is wholly within Portion 56.

11                  I am also satisfied that the grant of the homestead lease to Mr Price in 1914 was a ‘previous exclusive possession act’ within s 23B(2)(c)(i) of the Native Title Act.  Reference is then to be made to s 249C of the Native Title Act and to clause 11 of Schedule 1, which specifies a homestead farm as a scheduled interest within s 23B(2)(c)(i). 

12                  I am satisfied that the Court has power to make the order sought by the applicant. 

13                  The Court has jurisdiction to hear and determine applications that relate to native title pursuant to s 81 of the Native Title Act.  A determination of native title includes a determination that native title does not exist in relation to a particular area, see s 225.  The applicant, as the holder of a non native title interest in relation to the land may apply for a native title determination, see s 61(1).

14                  A similar order was made by Bennett J in Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2005] FCA 1713.  Her Honour referred at [14] to similar orders made in other applications.  Accordingly, I will make orders in terms of [1] and [2] of the draft short minutes of order handed to me by counsel for the applicant.

Associate:

Dated:              16 December 2005