FEDERAL COURT OF AUSTRALIA

Worimi Local Aboriginal Land Council v Attorney-General of New South Wales [2012] FCA 146

THE COURT ORDERS THAT:

1.    The name of the State Minister who is the First Respondent to these proceedings pursuant to s 84(4) of the Native Title Act 1993 (Cth) be changed from the Premier of New South Wales to the Attorney-General of New South Wales.

2.    There be a native title determination that no native title exists in Lot 2 in Deposited Plan 1145824 being the land contained in Folio Identifier 1/1145824 known as 2783 Nelson Bay Road, Salt Ash NSW.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Before the Court is an application brought by Worimi Local Aboriginal Land Council (‘Worimi LALC’) under s 61(1) of the Native Title Act 1993 (Cth) (‘the NT Act’). Worimi LALC seek a determination that no native title exists in land being Lot 2 in Deposited Plan 1145824 located at Port Stephens in the Parish of Stowell and County of Gloucester being the whole of the land contained in Folio Identifier 1/1145824 known as 2783 Nelson Bay Road, Salt Ash NSW (‘the land’). The application also included Lot 1 in DP1145824, but subsequently the applicant withdrew the application in respect of Lot 1.

2    Worimi LALC is a body corporate established pursuant to s 50 of the Aboriginal Land Rights Act 1983 (NSW) (‘the ALR Act’). The land was granted to Worimi LALC by the Minister for Lands on 28 August 2008 and was transferred to Worimi LALC on 19 May 2010 pursuant to s 36 of the ALR Act. Section 36(9) thereof provides:

Except as provided by subsection (9A), 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.

3    Section 42(1) of the ALR Act provides:

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).

4    The purpose of the present application is to seek such a determination.

JURISDICTION

5    Pursuant to Part 3 of the NT Act an application may be made to this Court for an approved determination of native title in respect of land for which there is no approved determination of native title. Section 61(1) contained in Part 3 identifies the persons or bodies who may bring such an application. ‘Approved determination of native title’ is defined in s 13(3) of the NT Act as follows:

Approved determinations of native title

(3)    Subject to subsection (4), each of the following is an approved determination of native title:

(a)    a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2);

(b)    an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory.

6    Section 225 of the NT Act provides that a determination of native title:

Is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters…

7    Section 253 of the NT Act defines a ‘claimant application’ as a native title determination application that a native title claim group has authorised to be made. A non-claimant application is defined in s 253 to mean a ‘native title determination application that is not a claimant application’. The present application is a non-claimant application.

8    Part 4 of the NT Act invests this Court with jurisdiction with regard to determinations relating to native title. Section 81 provides that such jurisdiction is exclusive of the jurisdiction of all other courts except the High Court. Section 86G of the NT Act empowers this Court to make an order in respect of an application made under s 61 of the NT Act without holding a hearing or if that hearing has commenced, without completing the hearing where certain preconditions are satisfied. Section 86G(1) provides:

Unopposed applications

Federal Court may make 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.

9    By virtue of s 86G(1) any such order can only be made at the end of the period specified in the notice provided under s 66. If the application is unopposed and if the 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 make an order.

10    ‘Unopposed’ is defined in s 86G(2) of the NT Act as follows:

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.

11    Section 66(1) of the NT Act provides that if the Native Title Registrar receives a copy of an application under s 63 of that Act the Registrar of the Federal Court must give the Native Title Registrar a copy of the application and supporting documentation. Section 66(3)(a) of the NT Act requires the Native Title Registrar to give notice containing details of a non-claimant application to the persons or bodies stated in s 66(3)(a).

THE EVIDENCE

12    The application was filed on 8 December 2010 and thereafter the National Native Title Tribunal (‘the NNTT’) gave notice under s 66(3) of the NT Act requiring parties referred to in the notice to apply to the Court in the three month period prescribed by s 66(10)(c). The court file shows that the three month period commenced on 23 February 2011 and ended on 24 May 2011.

13    By Notice of Intention to Become a Party to an Application filed on 21 February 2011, NTSCORP Limited gave notice that it wished to be joined as a party. On 14 June 2011 Deputy Registrar Kavallaris made an order joining NTSCORP as a party. No other party gave notice of intention to be joined as a party.

14    By letter dated 31 May 2011 the NNTT wrote to the Deputy District Registrar of the Court relevantly stating as follows:

I am writing to advise that the Tribunal conducted a search of the registers to identify any native title applications within the non claimant application area of NSD1731/2010 Worimi Local Aboriginal Land Council (NN10/8). On 31 May 2011 our records show that no applications fall within the external boundary of the non-claimant application NSD1731/2010.

15    Three affidavits have been filed in support of the application. The affidavit of Ms Valerie Merrick sworn on 9 August 2011 established that she is 67 years of age and has lived in Worimi Country since birth; that she is a Worimi elder and Registered Traditional Owner of Worimi Country and that all land within Worimi Country holds a cultural and spiritual value to her and her family. Ms Merrick deposes that she knows the land which is the subject of this application by personal observation and also by reference to plans and photographs shown to her. Ms Merrick states that she is not aware of any existing or ongoing Aboriginal traditional activities or practices that are taking place on the land. She states her belief that the application is being made to utilise and enhance the best opportunities for the land to the benefit of the Worimi Aboriginal Community.

16    The evidence of Ms Merrick is of importance in these matters. The evidence of a person who has knowledge of cultural and traditional uses of land is invaluable in determining the existence of native title in a piece of land: see Eden Local Aboriginal Land Council v NTSCORP Ltd [2010] FCA 745 at [24]. In Jimmy Ejai and Others v Commonwealth, Western Australia and Others (unreported judgment, Supreme Court of Western Australia, 18 March 1994, extracted at (1994) 68 ALB 25) Owen J said:

In claims touching on native title the best evidence lies in the hearts and minds of the people most intimately connected to Aboriginal culture, namely the Aboriginal people themselves. Expert evidence from anthropologists and others is of significance and due regard must, and will, be afforded to it. However, it seems to me that the full story lies in the hearts and minds of the people. It is from there that it must be extracted.

17    Mr Andrew Smith has provided an affidavit sworn on 9 August 2011. Mr Smith’s affidavit establishes that he is the Chief Executive Officer of Worimi LALC and has been employed by Worimi LALC since 6 February 2006.

18    Mr Smith’s affidavit confirms that in September 2002 a dwelling on land adjoining the land was found to encroach onto the land. Accordingly, to address this issue the present application is necessary since it must first be established whether any native title exists in the land.

19    Mr Smith’s evidence establishes that meetings were held with members of Worimi LALC on 5 March 2007, 7 May 2007 and 22 March 2010 and discussions were also held with the NSW Department of Lands to discuss the issue of the encroachment. As a result of discussion amongst Worimi LALC members and community and elders, and following investigation into the history of the land, Worimi LALC resolved that approval from the New South Wales Aboriginal Land Council should be sought to approve the land dealing with the sale of the land under the ALR Act.

20    Mr Smith’s affidavit records that an extraordinary meeting of members was held on 12 July 2010. Notification of the meeting and of the proposed resolutions was advertised in the Newcastle Herald on 26 June 2010 and the Port Stephens Examiner on 8 July 2010. Onsite visits to the land were conducted by Worimi LALC, community and elders including a cultural heritage visit on 30 June 2010.

21    At the extraordinary meeting held on 12 July 2010 Worimi LALC members considered the cultural and heritage significance of the land to the Worimi Aboriginal Community and resolved to dispose of the land subject to any native title being extinguished. Due to a defect in the wording of the resolution a further extraordinary meeting of members was necessary. Such meeting was held on 4 October 2010. Notice of that meeting was advertised to all members and in the Newcastle Herald on 25 September 2010. Worimi LALC members then resolved to dispose of the property in accordance with the resolution. The resolution adopted provided as follows:

The Members of the Worimi Local Aboriginal Land Council determine that the land known as Lot 2 in DP1145824, Nelson Bay Rd Salt Ash is not of Cultural Significance to the Aboriginals of the area and should be disposed of for a sale price of not less than the current market value of the land.

22    Mr Smith states that subject to native title being extinguished, Worimi LALC will seek approval to proceed to deal with the land as required by s 42G(5) of the ALR Act.

23    Mr Smith further deposes that he is not aware of any native title claims or existence of native title in the land, nor is he aware of any existing or ongoing Aboriginal traditional activities or practices taking place on the land.

24    Mr Samuel Eather, solicitor, in his affidavit sworn on 9 August 2011 deposes that on 2 June 2011 he received a letter dated 31 May 2011 from the NNTT advising that no native title applications within the non-claimant application area had been identified. Such letter is annexed to Mr Eather’s affidavit.

25    On 21 September 2011 the Deputy District Registrar of the Court wrote to the State Minister requesting the State’s view concerning the proposal and referring to s 86G of the NT Act. By letter dated 27 September 2011 the Crown Solicitor responded stating that the orders sought by the applicant were not opposed.

26    By a notice dated 12 October 2011, NTSCORP gave notice pursuant to s 86G of the NT Act that it did not oppose the orders sought by the applicant.

CONSIDERATION

27    Applications under s 86G of the NT Act have previously been determined by the Court: see for example Application by the Metropolitan Aboriginal Land Council [2001] FCA 605; Applications by the Deniliquin Land Council [2001] FCA 609; Darkinjung Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2001] FCA 1124; Kennedy v State of Queensland (2002) 190 ALR 707.

28    In Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 Emmett J observed at 114:

The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes. (Emphasis in original)

29    His Honour also added at 115:

[T]he Court must act judicially. That is to say, it cannot simply act capriciously. The Court must have regard to the objects and purposes of the Act.

30    Emmett J’s observations were referred to and adopted by Branson J in Kelly on behalf of the Byron Bay Bundjalong People v NSW Aboriginal Land Council [2001] FCA 1479 at [20]-[21].

31    The need for caution obviously arises from the fact that an order declaring that no native title exists may have permanent and far reaching consequences, requiring the Court to be satisfied that not only the statutory requirements under the NT Act have been observed, but also that the evidence in support of the application justifies the Court making an order under s 86G of the NT Act. Accordingly, the Court must be satisfied firstly that the non-claimant application is ‘unopposed’ within the meaning of s 86(G)(2) of the NT Act; and secondly that an order in or consistent with the terms sought by Worimi LALC is within the power of the Court: see Kennedy v State of Queensland at [21].

32    The Court observes that it is not required to approve any sale of the land. The terms of any sale are not for determination in this application.

FINDINGS

33    The Court has taken into consideration the evidence of the witnesses who provided affidavits, the evidence that the resolutions were passed after extensive notification and the fact that there has been no opposition to the application. The evidence satisfies the Court that there is no native title in the subject land, that no prior determination has been made under s 13(1)(a) of the NT Act and that the statutory prerequisites of the NT Act have been fulfilled.

34    Accordingly, the Court is satisfied that the non-claimant application is ‘unopposed’ within the meaning of that term as defined in s 86G(2) of the NT Act. Further, the order to be made by the Court is consistent with the terms sought in the application, and the making of the order is within the power of the Court.

35    The Court notes that for the purpose of s 84(4) of the NT Act the Attorney-General of New South Wales is the current State Minister who should be the first respondent in these proceedings. Accordingly pursuant to Rule 1.32 of the Federal Court Rules 2011 the name of the first respondent will be changed from the Premier of New South Wales to the Attorney-General of New South Wales.

Associate:

Dated:    29 February 2012