FEDERAL COURT OF AUSTRALIA

Gandangara Local Aboriginal Land Council v Minister for Lands [2009] FCA 1136

NATIVE TITLE – non-claimant application – declaration sought that no native title exists in subject land – orders accordingly.

Held: declaration made.

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

Native Title Act 1993 (Cth), ss 66, 86G

GANDANGARA LOCAL ABORIGINAL LAND COUNCIL v MINISTER FOR LANDS and NTSCORP LIMITED

NSD 1839 of 2008

JAGOT J

30 SEPTEMBER 2009

SYDNEY

THE COURT DECLARES THAT:

1.          No native title exists in relation to the land comprised in New South Wales Department of Lands Certificate of Title folio identifier 101 in Deposited Plan 1028645, located in the Local Government Area of Sutherland, Parish of Holsworthy, County of Cumberland, State of New South Wales.

THE COURT ORDERS THAT:

2.         Each party pay its own costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             This is a native title determination application referred to as a non-claimant application under the Native Title Act 1993 (Cth).  The applicant is the Gandangara Local Aboriginal Land Council.  It filed an application on 25 November 2008 for a determination that there was no native title in the parcel of freehold land which the applicant owns.  This parcel was transferred by the State of New South Wales to the applicant, on or about 31 March 2003, pursuant to the provisions of the Aboriginal Land Rights Act 1983 (NSW). 

2                                             The certificate of title notes that the land is subject to conditions in memorandum Y757000 and dealing number 9492998.  Further, that there are restrictions on dealings pursuant to ss 40 and 40AA of the Aboriginal Land Rights Act.  Under s 40AA, in particular, there are restrictions on selling and dealing with the land transferred by the State of New South Wales to the applicant.  It is for this reason that the applicant seeks a determination that the land in question is not subject to native title. 

3                                             Under s 66 of the Native Title Act, notice of the application was required to be given..  The notice was published in the three month period, commencing 11 February 2009 and ending on 10 May 2009.  The notice in question identified the land and drew the reader’s attention to the fact that under the Native Title Act, there can be only one determination of native title for a particular area, so that if a person with any native title right or interest did not become a party, there may be no other opportunity for the Federal Court in making its determination to take into account those native title rights and interests.  The Court’s file discloses that there was no response to the notification. 

4                                             In addition, both the first respondent (the Minister for Lands) and the second respondent (NTSCORP Limited) have filed notices indicating that pursuant to s 86G of the Native Title Act, they do not oppose orders in or consistent with the terms sought by the applicant, namely that no native title exists in relation to the land. 

5                                             Section 86G of the Native Title Act deals with unopposed applications.  It provides that:

(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.

6                                             In this case, the application is unopposed, and I am satisfied that an order as sought by the applicant is within the power of the Court and that it is appropriate to make such an order generally in the terms sought by the applicant. 

7                                             Accordingly, the Court declares that no native title exists in relation to land comprised in New South Wales Department of Land Certificate of Title, folio identifier 101 in deposited plan 1028645 located in the local government area of Sutherland, Parish of Holsworthy, County of Cumberland, State of New South Wales.

8                                             I also order that each party is to pay its own costs of the proceeding.

Associate:

Dated:         30 September 2009