FEDERAL COURT OF AUSTRALIA

Eden Local Aboriginal Land Council v NTSCORP Limited [2010] FCA 745  

THE COURT ORDERS THAT:

1.                  Native title does not exist in relation to the land comprised in NSW Department of Lands Certificate of Title folio identifier 98 of Deposited Plan 1036338.

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

The Application

1                     This is an application under section 61 of the Native Title Act 1993 (Cth) (“Native Title Act”) for a determination that no native title exists in relation to land comprised in New South Wales Department of Lands Certificate of Title folio identifier 98 of Deposited Plan 1036338 (“the Land”). 

2                     The Land is in the local government area of Bega Valley Shire, New South Wales.  There has been no determination to date that native title exists in relation to the Land. 

3                     The application is supported by an affidavit of Mr Oswald Cruse, who is the Chairperson of the Eden Local Aboriginal Land Council (“Eden LALC”).  The affidavit was sworn on 14 May 2010. 

Proposed Use of the Land

4                     If the application is approved, the Eden LALC proposes to lease part of the Land to Telstra Corporation Limited (“Telstra”) for the purpose of the operation of a monopole facility in accordance with the terms of an agreement for lease entered into between the Eden LALC and Telstra, dated 3 September 2009. 

5                     The lease is not in evidence but I am told by Ms Fitzclarence, who appears for the Eden LALC, that the proposed lease is for a period of three years.

6                     The Eden LALC determined at an extraordinary general meeting on 25 July 2008 that the Land is not of cultural significance to the Aborigines of the area, and the members endorsed the lease of the Land to Telstra. 

7                     The evidence does not disclose the reason for the delay, but it appears that there have been lengthy discussions which have delayed the making of this application.  Ms Fitzclarence tells me that there may now be some doubt as to whether Telstra wishes to proceed with the lease.  Nonetheless, she is instructed to proceed with the application this morning.

Restrictions on Use of the Land

8                     The Land is subject to the restrictions contained in the provisions of ss 40 and 40AA of the Aboriginal Land Rights Act 1983 (NSW) (“Aboriginal Land Rights Act”).  Those provisions were repealed and replaced with new provisions which came into effect on 31 March 2010.  The relevant provisions are now contained in ss 42 and 42E of the Aboriginal Land Rights Act. 

9                     The effect of the now repealed provisions, ss 40 and 40AA, was explained 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 (“Peter Hillig”) at [3].

10                  It seems to me that the effect of Schedule 4 Part 9 cl 51 of the Aboriginal Land Rights Act as in effect from March this year, is that the present application is governed by the provisions of ss 42 and 42E of the Aboriginal Land Rights Act rather than the repealed provisions of ss 40 and 40AA, even though the present application was made before the new provisions came into force. 

11                  In my opinion, this follows from the definitions of “existing land dealing” and “existing registrable instrument” contained in cl 50 of Part 9 of Schedule 4 of the Aboriginal Land Rights Act.  It follows from those definitions that cl 51(1) and (2) of Part 9 of Schedule 4 do not apply. 

12                  Clause 51(3) of Part 9 of Schedule 4 provides as follows:

If the requirements of the former land dealing provisions were not complied with in relation to a land dealing entered into before the commencement of the new land dealing provisions, the new land dealing provisions apply to that land dealing.

13                  The definitions of “former land dealing provisions” and “new land dealing provisions” are contained in cl 50(1) of Part 9 of Schedule 4.  Relevantly, “new land dealing provisions” means Division 4 of Part 2 of the Aboriginal Land Rights Act as substituted by the amending Act which, as I have said, came into force on 31 March 2010. 

14                  Sections 42 and 42E are contained in Division 4 of Part 2 and they, therefore, apply to the present application. 

15                  My attention has been drawn in written submissions provided by the Eden LALC to Item 8 of Part B of the New South Wales Aboriginal Land Council application form for Approval of Dealings.  That form makes it clear that a determination under s 61 of the Native Title Act is a prerequisite for the NSW Aboriginal Land Council (“NSW ALC”) to deal with the matter. 

16                  The provisions of ss 42(1), 42E(1), (2) and (3), as well as s 42G(1), are relevant. 

17                  Those subsections are as follows:

 42(1)  An Aboriginal Land Council must not 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).

42E(1)  A Local Aboriginal Land Council must not deal with land vested in it except in accordance with an approval of the New South Wales Aboriginal Land Council under section 42G.

42E(2)  However, the approval of the New South Wales Aboriginal Land Council is not required for the following land dealings by a Local Aboriginal Land Council:

(a)  a lease for a period of less than 3 years (including any option to renew the lease), other than a social housing management lease,

(b)  a land dealing prescribed by the regulations for the purposes of this section.

42E(3)  A Local Aboriginal Land Council must not deal with land vested in it that is land transferred to the Council under section 36 unless both the Crown Lands Minister referred to in that section and the Minister have been notified of the proposed dealing.

42G(1) The New South Wales Aboriginal Land Council must (subject to subsection (2) and any requirements of the regulations), on an application for approval of a land dealing being made by a Local Aboriginal Land Council in accordance with this Act, approve (with or without conditions) the land dealing if the New South Wales Aboriginal Land Council is satisfied that:

(a)  the application is in accordance with this Act, and

(b)  the members of the Local Aboriginal Land Council have passed a resolution in accordance with subsection (5) and that the dealing is in accordance with that resolution.

42G(5) A Local Aboriginal Land Council resolution approving a land dealing must:

(a)  be passed at a meeting of which prior notice was given, in accordance with the regulations, and at which a quorum was present, and

(b)  be passed by not less than 80 per cent of the voting members of the Council present at the meeting, and

(c)  contain the following matters:

(i)  the identity of the land,

(ii)  a statement that the impact of the land dealing on the cultural and heritage significance of the land to Aborigines has been considered in determining whether to approve the dealing,

(iii)  the manner in which the land is to be dealt with,

(iv)  any conditions to which the approval of the dealing is subject.

18                  I have been informed that, in anticipation of the Court’s approval of the present application, the Eden LALC is currently preparing an application for approval from NSW ALC in accordance with s 42G of the Aboriginal Land Rights Act for the proposed land dealing with Telstra. 

The Applicant’s Interest in the Land

19                  I do not need to set out the provisions of s 61 and related provisions, namely ss 225 and 253 of the Native Title Act.  The effect of those sections was explained by Bennett J in Peter Hillig at  [4], [5] and [6]. 

20                  I am satisfied that Eden LALC is the registered proprietor of the Land and that it has a non-native title interest in relation to the Land.  A copy of the title search for the Land is in evidence.  It was annexed to Mr Cruse’s affidavit. 

Notice of the Application

21                  Section 66(3) of the Native Title Act requires the Native Title Registrar to give notice of the details of a non-claimant application to certain persons or bodies and to notify the public.  I am satisfied that the requisite notices have been given. 

22                  The period specified in the notice under s 66 expired on 29 March 2010.  As at that date no native title claimant has sought to appear before the Court or notified an interest.  The matter was called this morning in Court, and there was no appearance. 

23                  The National Native Title Tribunal has conducted a search of the registers and has confirmed there is no determination of native title over the Land within the meaning of section 13(3) of the Native Title Act.  The results of the search are in evidence. 

No Determination of Native Title in the Land

24                  Paragraph 8 of the affidavit of Mr Cruse is relevant.  He is 77 years of age and has been acquainted with the Land for most of his life;  he is not aware of any hunting, fishing, or food gathering, or the exercise of native title rights by indigenous people on the Land.

25                  I have made two previous native title determinations in relation to land which is nearby to the Land.  Those matters were the subject of two judgments which I delivered; see Cruse v New South Wales Native Title Services Ltd [2006] FCA 1124 and Eden Local Aboriginal Land Council v Minister for Lands [2008] FCA 1934.

Unopposed Application

26                  The respondents to the application are the Minister for Lands (pursuant to s 84(4) of the Native Title Act), and NTSCORP Limited.  The solicitors for each of those parties have notified the Court in writing that the application is unopposed, and the respondents have signed the proposed short minutes of order. 

27                  I am therefore satisfied that the application is unopposed within the definition in s 86G(2) of the Native Title Act. 

Federal Court Jurisdiction

28                  I am also satisfied that the Federal Court has power to make the orders that are sought and that the Court has jurisdiction under s 81 of the Native Title Act to hear and determine the application.

Orders

29                  Orders of the kind that are sought today have previously been made by the Court in Peter Hillig and also in Deniliquin Local Aboriginal Land Council [2001] FCA 609 and Kennedy v Queensland (2002) 190 ALR 707. 

30                  For these reasons, I propose to make orders in terms of the proposed short minutes of consent order signed by NTSCORP Limited and on behalf of the Minister for Lands, as well as on behalf of Eden LALC.    

Associate:

Dated:         22 July 2010