FEDERAL COURT OF AUSTRALIA

Nambucca Heads Local Aboriginal Land Council v Minister for Lands
[2009] FCA 624

NAMBUCCA HEADS LOCAL ABORIGINAL LAND COUNCIL v MINISTER FOR LANDS and NTSCORP LIMITED

NSD 1241 of 2008

PERRAM J

10 JUNE 2009

SYDNEY

THE COURT DETERMINES THAT:

1.                  No native title exists in relation to the land subject to the application, and that such determination is an approved determination as required by s 40AA of the Aboriginal Land Rights Act 1983 (NSW).

REASONS FOR JUDGMENT

1                                             The applicant is a Local Aboriginal Land Council constituted pursuant to s 50 of the Aboriginal Land Rights Act 1983 (NSW) (“the Aboriginal Land Rights Act”).  It is the owner of two lots of land, Lots 526 and 527, on the corner of Mumbler Street and Belwood Road in Nambucca Heads, which is located on the mid-north coast of New South Wales.  The Council has entered into negotiations with Indigenous Business Australia to develop the two lots as a shopping centre pursuant to a joint venture.   The proposed joint venture will involve the creation of a unit trust owned equally between Indigenous Business Australia and the Council.  The Council proposes to grant to the trustee of that unit trust call options in respect of the two lots.  The joint venture has not yet been entered into nor insofar as I can see has the unit trust been called into existence. 

2                                             The evidence shows that the redevelopment of Lots 526 and 527 has been in contemplation of the Council for some time.  An extraordinary general meeting of the Council was held on 24 July 2008 to discuss and to consider the proposed development.  Resolution 1 considered at that meeting was in the following terms:

The land is not of cultural significance to Aborigines of the area (being land which is not significant in terms of the traditions, observances, customs, beliefs or history of Aborigines of the area.

3                                             The manner in which the matter was debated is also recorded in the minutes in this way:

Robin Bryant excused himself from the meeting as 527 and 526 is culturally significant to himself so he asked to be excused from the meeting at 6.54pm.

Members went into a discussion about this matter along with Andrew Riley N.S.W. ALC zone Director

Tony then went back to resolution one to clearly explain to members, the Chairperson then asked for the motion to be moved.

Resolution 1 was           Moved  – Bridget Walker

                                    Second  – Violet Williams

17 members where in favour of this, 1 abstained from voting.

4                                             The resolution was passed with one abstention from a person who regarded the land as culturally significant to him.  At the same meeting the Council resolved to approve entry into a call option with the trustee for the transfer of lot 526 but that conveyance was subject to “a determination that no native title exists over lot 526”.  That condition was made necessary by the terms of the Aboriginal Land Rights Act.  Section 40AA of that Act prohibits a Local Aboriginal Land Council from disposing of land vested in it which is subject to native title rights and interests without “an approved determination of native title (within the meaning of the Commonwealth Native Title Act)”.  The present Council became the owner of lot 526 in fee simple as a result of a conveyance to it from the State of New South Wales on 17 March 1998.  That conveyance occurred as a result of an order made by the Land and Environment Court of New South Wales pursuant to s 36 of that Act.   Section 36(9) expressly provides that any land so conveyed is “subject to any native title rights and interests existing in relation to the lands”.

5                                             Consequently, the Council could not proceed with the proposed call option without obtaining from this Court a determination that there was no native title subsisting in lot 526.

6                                             Subsequent to the meeting, on 30 September 2008, the New South Wales Aboriginal Land Council, which is the peak land council for New South Wales, approved the use of the two lots for the purposes of the proposed development.

The application

7                                             The Council has applied, as required by s 40AA of the Aboriginal Land Rights Act, for a determination of native title in lot 526.  The determination it seeks is a determination:

… that no native title exists in relation to the land subject of this application and that such determination is an approved determination as required by Section 40AA of the Aboriginal Land Rights Act 1983.

8                                             Under s 61 of the Native Title Act 1993 (Cth)(“the Act”), that application may be made by a person who holds a “non-native title interest in relation to the whole of the area in relation to which the determination is sought”.

9                                             The expression “non-native title interest” is not defined in the Act.  However, “interest” is defined to include any legal estate in land.  There is no doubt that the Council has such an interest in lot 526 and there are no particular difficulties in concluding that that interest is a non-native title interest.

10                                          Applications under s 61 for determinations of native title can be made by a native title claim group in which case it is known as a claimant application: see s 253.  An application made by anyone else is a “non-claimant application”: s 253.  It follows that the present application is a non-claimant application. 

11                                          The present application was not opposed by the Minister for Lands.  NTSCORP Limited is a native title representative body funded pursuant to s 203FE of the Act.  It was joined to the present proceedings.  It also indicated that it did not oppose the making of the determination. 

Consideration

12                                          There is nothing in the material to indicate that native title subsists in lot 526.   The local representative body has resolved that there is no such interest and the Minister and NTSCORP do not appose the making of the orders.  In those circumstances, I determine that there is no native title in the land in question.

13                                          The order of the Court will be that it determines that no native title exists in relation to the land subject to the application and that such determination is an approved determination as required by s 40AA of the Aboriginal Lands Rights Act 1983 (NSW).

Associate:

Dated:         10 June 2009