FEDERAL COURT OF AUSTRALIA

Worimi Local Aboriginal Land Council v Attorney-General of New South Wales [2012] FCA 147

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 491 in Deposited Plan 727810 being the land contained in Folio Identifier 491/727810 being land known as 74 Port Stephens Drive, Taylors Beach NSW 2316.

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 491 in Deposited Plan 727810 known as 74 Port Stephens Drive, Taylors Beach (otherwise known as Anna Bay) NSW 2316. Such land is located in the local government area of Port Stephens in the Parish of Tomaree County of Gloucester and comprises the land contained in Folio Identifier 491/727810 (‘the land’).

2    This application is made pursuant to s 86G(1) of the NT Act, which 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.

3    The application has been heard simultaneously with proceedings NSD 1731 of 2010 which relates to an application by the same applicant, which sought a declaration that no native title exists in relation to land in the same vicinity as the land in these proceedings. The evidence in support of these proceedings is virtually identical as for proceedings NSD 1731 of 2010, save for the references to the particular piece of land. The same principles as referred to in the Court’s judgment in proceedings NSD 1731 of 2010 in relation to non-claimant applications apply to these proceedings, and the Court considers it unnecessary to re-state them. Accordingly the Court, in these proceedings, will abbreviate its findings.

4    The land was granted to Worimi LALC pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW) (‘the ALR Act’) on 4 October 2002 following a claim made on 23 October 1995. The land was transferred to Worimi LALC on 4 February 2010.

5    Section 36(9) of the ALR Act 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.

6    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).

7    Worimi LALC wishes to deal with the land, and accordingly this application is made to the Court.

8    After the application was filed on 8 December 2010, the National Native Title Tribunal (‘the NNTT’) gave notice under s 66(3) of the NT Act requiring interested parties to apply to the Court within the three month period specified by s 66(10)(c). The three month period commenced on 23 February 2011 and concluded on 24 May 2011.

9    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.

THE EVIDENCE

10    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. She 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.

11    Mr Andrew Smith has sworn an affidavit 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.

12    Mr Smith deposes that the land was subject to differing zoning. A portion thereof that has a frontage to Port Stephens Drive was zoned 4a Industrial and the rear portion that was bordered by Crown Land was zoned 1a Rural-Agricultural. In 2009 Worimi LALC joined the neighbouring parties in a rezoning application to enhance the future development potential of the land. As a consequence the land is now wholly zoned as 4a Industrial.

13    When the land was transferred to Worimi LALC it was in an unfavourable state. Substantial quantities of sand had been extracted from the land and from adjoining properties pursuant to a sand extraction lease which has now expired. The extraction resulted in a large sand embankment building up along the common boundaries of the land and of the neighbouring lands. Accordingly, Worimi LALC and Hunter Land Pty Ltd, the adjoining owner, agreed to level the embankment and redistribute the sand over the surface of the land and the neighbouring properties to enhance development potential of those lands.

14    In January 2010 Worimi LALC made an Aboriginal Cultural and Heritage Assessment of the land and following completion of the report on 18 January 2010, Worimi LALC decided to take steps for disposal of the land and determined that approval for sale of the land under the ALR Act should be sought from the NSWALC. Mr Smith’s affidavit records that meetings have been held with members on 5 March 2007, 7 May 2007 and 22 March 2010 and discussions were held with the NSW Department of Lands.

15    Notification was forwarded by Worimi LALC to all members giving notice of an extraordinary meeting to deal with the land and to pass resolutions for such sale. The notice was advertised in the Newcastle Herald on 26 June 2010 and the Port Stephens Examiner on 8 July 2010. Site visits to the land were conducted by Worimi LALC and elders on 30 June 2010.

16    An extraordinary meeting of members was held on 12 July 2010 at which a resolution was passed to sell the land. However due to a defect in the wording of the resolution a further extraordinary meeting of members was necessary. Such extraordinary meeting was held on 4 October 2010 and 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 following resolution:

The Worimi LALC members have considered the Culture and Heritage Significance of Lot 491 in DP727810 Port Stephens Drive, Anna Bay to Aborigines and resolve to dispose of the Land for a sale price not less than the current market value.

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

18    The third affidavit, namely that of Mr Samuel Eather sworn on 9 August 2011, completes the evidence. Mr Eather, solicitor, 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.

19    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.

20    By 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.

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

JURISDICTION AND FINDINGS

22    The jurisdiction of the Court to make orders in a non-claimant application has been considered and referred to in proceedings NSD 1731 of 2010. The considerations applied in that decision apply to this application.

23    The Court is satisfied that the evidence establishes that there is no native title in the land and that the application is unopposed. Accordingly the Court will make the orders sought pursuant to s 86G(1) of the NT Act.

24    The Court will also amend the name of the first respondent as discussed in proceedings NSD 1731 of 2010.

Associate:

Dated:    29 February 2012