FEDERAL COURT OF AUSTRALIA

Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792

THE COURT DECLARES THAT:

1.    The following parcels of land are not subject to native title:

(a)    Lot 95 in Deposited Plan 47951;

(b)    Lot 87 in Deposited Plan 822053;

(c)    Lot 2 in Section 12 of Deposited Plan 758612; and

(d)    Lot 8 in Section 15 of the Deposited plan 758612.

THE COURT ORDERS THAT:

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

1    The applicant is a local aboriginal land council incorporated under the provisions of s 50 of the Aboriginal Land Rights Act 1983 (NSW) (‘the ALR Act’). It is the relevant council for the area of Lightning Ridge, an opal mining town in northern New South Wales.

2    Under the ALR Act the applicant is entitled to claim unoccupied Crown land from the State of New South Wales: s 36(3). When a claim is granted under the ALR Act a claimant receives an estate in fee simple, subject to pre-existing native title rights and interests: s 36(9).

3    In 2006, the applicant claimed and, subsequently, the State of New South Wales conveyed to the applicant under the ALR Act, four parcels of land at Lightning Ridge in fee simple. Two of these – Lot 87 in Deposited Plan 822053 (‘Lot 87’) and Lot 95 in Deposited Plan 47951 (‘Lot 95’) – were contiguous and were situated at the point at which Shermans Way becomes Pandora Street. Shermans Way is also known as the Lightning Ridge-Collarenabri Road. In any event, both lots lie on the outskirts of the town. Lot 95 is approximately 11,930 m2 in area and Lot 87 is approximately 25,030 m2 in area. Aerial photography of both lots indicates they include no improvements and are, in effect, vacant.

4    The other two lots are Lot 2 in Section 12 of Deposited Plan 758612 (‘Lot 2’) and Lot 8 in Section 15 of the same deposited plan (‘Lot 8’). These two lots are in the town and are somewhat smaller being, respectively, 1,031 m2 and 1,004 m2. Again both are vacant, though the evidence discloses that Lot 2 was formerly a residential block and aerial photography suggests that Lot 8 is used as a carpark for the nearby shops.

5    The evidence before this Court disclosed that the applicant wished to develop one of the lots on Pandora Street (Lot 95) into an aboriginal child and family centre. This was to be done in conjunction with the New South Wales Department of Family and Community Services. It was anticipated that as part of that proposal the applicant would lease Lot 95 to the State of New South Wales. Negotiations to that end are, according to the evidence, nearing completion.

6    There is no evidence of any other development proposals for the remaining three lots.

7    The title of the applicant to the four lots may be deficient in a practical sense. Section 42 of the ALR Act prohibits a local aboriginal land council to whom land has been granted from dealing with that land unless there has been an ‘approved determination of native title’ under the Native Title Act 1993 (Cth) (‘the NT Act’).

8    Section 13(1) of the NT Act permits an application to be made to this Court for a determination of native title in relation to an area for which there is no ‘approved determination of native title’. The evidence before me included a letter dated 24 February 2012 from the National Native Title Tribunal to the applicant. It recorded, inter alia, that the Tribunal had conducted searches of its registers and these revealed that there had been no native title applications with respect to the four lots (more precisely: with respect to the area the subject of the present application). I accept, therefore, that there are no approved determinations of native title with respect to the four lots within the meaning of s 13(1) of the NT Act. The present application may, therefore, be made.

9    Section 61(1) of the NT Act permits application under s 13 to be made by a person holding a non-native-title interest which includes a person, such as the applicant, who is the proprietor of an estate in fee simple. The applicant filed such an application – the present application – on 19 July 2011. The applicant seeks therein a declaration that there is no native title in respect of the four lots. Insofar as Lot 95 is concerned the applicant may require such a determination to lift the restriction on ‘dealing’ with the land potentially imposed by s 42 of the ALR Act. It does not presently require such a determination in the case of the other three lots but that is no objection to the procedure being invoked. As the owner, it is entitled to seek to have its right to deal with the land clarified.

10    Following the filing of the application in this Court the National Native Title Tribunal notified the application. The notification period was from 21 September to 20 December 2011. It notified the matter by writing to various persons identified in s 66(3)(a) of the NT Act and by notifying the public as required by s 66(3)(d). This it did by publishing various notices in the Walgett Spectator and Koori Mail on 7 September 2011.

11    No claims in respect of any of the lots were received by the Tribunal by 17 February 2012, a fact of which it then informed the solicitors for the applicant on 24 February 2012. On 12 March 2012 NTSCORP Limited, a body established to perform the functions of a native title representative body for New South Wales and the Australian Capital Territory, indicated that it did not oppose the orders sought by the applicant. On the same day, the Premier of New South Wales, a respondent, communicated the same attitude. It is correct, therefore, to describe the present application as entirely unopposed.

12    On 16 March 2012, shortly after NTSCORP communicated its non-opposition, a judge of this Court ordered that the application be docketed and it was thereafter docketed to me on 7 May 2012.

13    Mention has been made above of the prohibition on a local aboriginal land council ‘dealing’ with land granted to it in s 42 of the ALR Act. The actual words of that prohibition are as follows:

42 Restrictions on dealing with land subject to native title

(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).

14    The words ‘subject to native title rights and interests’ needs to be understood in light of ss 36(9) and 36(9A). These provide:

36 Claims to Crown lands

…

(9)     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.

(9A)     Where the transfer of lands to an Aboriginal Land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

15    Regardless of which of these applies, the effect of s 42(1) is to ensure that the act of granting a freehold estate to a local aboriginal land council does not have the effect of extinguishing any pre-existing native title rights.

16    The prohibition contained in s 42(1) is potentially of uncertain operation because the precise native title position of any parcel of land may not be known. One reading of it – favoured by Mr Beckett, the solicitor for the applicant – was that if the land was not subject to any native title rights then s 42(1) was not enlivened and did not give rise to a prohibition. Another reading of it – favoured by the Premier of New South Wales for whom Mr El-Hage of counsel appeared – was that it was to be read with s 36(9) so that it always applied regardless of whether there was, or was not, native title.

17    It is not necessary for me to resolve this issue. Whether Mr Beckett’s clients are obliged by s 42(1) of the ALR Act to bring the present application or not, the fact is that the application has been brought and must now be resolved. The question of the proper construction of s 42(1) would only arise where a local aboriginal land council sought to deal with granted land without first obtaining a determination of native title. That is not the present case.

18    The expression ‘deal with land’ is very broadly defined in s 40 of the ALR Act to include not only sale, lease or other disposition (sub-s (a)) but also subdivision (sub-s (f)) and the making of a development application (sub-s (g)). If s 42(1) applies (an issue I do not resolve) then its operation will affect the proposed redevelopment of Lot 95 which envisages the grant of a lease. Further, it is difficult to imagine that the centre could physically be constructed without obtaining a development consent from the local municipal council.

19    Regardless of whether s 42(1) compels the present application, s 13(1) of the NT Act contemplates the making of such applications to this Court in general terms and s 61(1) confers upon a person holding a non-native-title interest in land a right to make such an application in respect of that land. Section 225 includes amongst the various classes of native title determinations which may be made a determination that the land in question is not subject to native title. Because the application is not brought by a native title claim group it is a ‘non-claimant’ application: s 253.

20    It is perhaps ironic that a local aboriginal land council who has obtained the benefit of a grant of a freehold estate under the ALR Act may then be required to make application to this Court under the NT Act.

21    The apprehension that irony may be present turns out to be well-founded on closer inspection of the NT Act. The NT Act erects a series of protections known as future act protections following upon the making of an unopposed non-claimant application even without its determination after the expiry of the notification period: s 24FC. Without dwelling on the detail, the effect of s 24FA(1) of the NT Act will be that without the need for the Court to determine the non-claimant application all future acts in relation to the land will be valid even if those acts extinguish native title. The NT Act, therefore, contemplates a procedure where non-claimants may get security as to the validity of their title merely by making a non-claimant application which is properly notified. They do not, therefore, need to undertake the potentially laborious task of proving that there is no native title. Extinguishment of native title by such acts will, however, give the native title holders a right to compensation: s 24FA(1)(b).

22    The provisions of s 42(1) of the ALR Act may bring about a different result. Depending on its precise meaning it may require a local aboriginal council to ensure that an application under the NT Act is pursued to finality; that is, it is not sufficient merely that an unopposed application is made and notified (as it is with all other non-claimants in that situation) – instead, it may be that the application must be determined which in practice will mean that the council involved will need to prove that there is no native title. This is a burden which does not rest upon any other non-claimant by reason of s 24FC.

23    It was not suggested there was any problem with this state of affairs arising from s 109 of the Constitution: cf. s 42(1) ALR Act as against s 24FC NT Act; cf. also s 42(1) ALR Act and s 24FC of the NT Act as against s 9(1) Racial Discrimination Act 1975 (Cth). The issues arising in such debate may well be of some subtlety. It is not appropriate to enter further on this question.

24    Considerations of that kind do, however, underscore the unsatisfactory nature of s 42(1) which may appear to burden those whom it was designed to assist. If s 42(1) were amended to include a reference to future act protection under the NT Act the problem would, in all likelihood, be solved. In turn that would relieve this Court from having to determine a constant stream of non-claimant applications from local aboriginal land councils. It is a matter which warrants attention from the New South Wales Parliament.

25    That, however, is not the present state of the law. In the case of the present applicant, as probably in the case of all such councils who seek to use the lands granted to them under the ALR Act productively, this application must be heard and determined.

26    It is convenient to deal with each lot separately.

Lot 95

27    The evidence did not directly disclose any matter bearing on the existence or non-existence of native title; that is, there was no evidence about on-going practices and so on. It did, however, establish that Lot 95 was the result of a subdivision which occurred on 9 May 1997 when a larger parcel of land was split in two. That larger parcel of land had been leased (or at least a lease had been registered) on 26 April 1988 to a Mr and Mrs Pardey under the terms of the Western Lands Act 1901 (NSW) (‘the WLA’). The schedules to the memorandum recording the particulars of this lease recorded this: ‘Purpose of Lease: Business Purposes (Reptile Park)’. In the Government Gazette for 14 January 1983 the same lease with the same purpose of a reptile park is recorded, suggesting that some time may have passed between the grant of the lease and its registration under s 13D of the Real Property Act 1900 (NSW).

28    At no time has s 28A of the WLA expressly authorised leases for business or residential purposes. It has always, however, in its very many amended forms permitted the grant of a special purpose lease where the particular purpose has been declared by the Minister. With considerable diligence Mr Beckett, with the co-operation of the State of New South Wales, has been able to secure such a declaration dated 27 June 1906 which includes not only leases for business purposes but also leases for residences (this will be relevant, in due course, to Lot 2). It follows that the lease to Mr and Mrs Pardey was, indeed, a lease under s 28A for the business purpose of a reptile park.

29    I infer from the lease itself that a reptile park was, in fact, conducted by Mr and Mrs Pardey. The notice in the Gazette also indicates that the lease was granted under s 28A of the WLA.

30    Fortified with that knowledge, one must turn then to s 23B(2) of the NT Act which defines what is termed a ‘previous exclusive possession act’. There are three requirements for such an act: first, the act must be present on the list in s 23B(2)(c) which is a list of various acts connected with the granting or vesting of title. The first of these (s 23B(2)(c)(i)) is the granting or vesting of what is known as a ‘Scheduled interest’ an expression defined in s 249C to include, inter alia, anything in Schedule 1. Clause 3(6) of Schedule 1 refers to ‘Special’ leases under s 28A of the WLA which are solely or primarily for a business purpose of a number of specified kinds. One of these purposes is ‘tourist accommodation and facilities’. I do not think that what is required thereby is a business involving both tourist accommodation and tourist facilities so that a lease for tourist accommodation which did not include facilities would not be included. Instead, this is one of those cases where ‘and’ really means ‘and/or’: cf. Re Peat Resources of Australia Pty Ltd; ex parte Pollock (2004) 181 FLR 454 at 460-467 [23]-[54]; [2004] WASCA 122 at [23]-[54] per Malcolm CJ.

31    It will suffice, therefore, if a reptile park is a ‘tourist facility’ within the meaning of cl 3(6). In my opinion, it is. Not everyone who visits a reptile park is a tourist but tourists are more heavily represented amongst the class of those who do visit such parks than the general population.

32    Correspondingly, whilst there is no doubt that a reptile park is a facility for holding reptiles, it is also a facility for entertaining the public and a public with a distinct flavour of tourism. In reaching this conclusion I have considered the ruminations of Bignold J in Evans v Maclean Shire Council [2004] NSWLEC 512 on whether the expression ‘tourist facility’ includes a caravan park but have not found it useful for present purposes; ultimately the differences between reptiles and caravans are too great to admit of ready comparison.

33    The upshot of this is that the lease to Mr and Mrs Pardey was the grant of a Scheduled interest to them under s 23B(2)(c)(i) of the NT Act.

34    The other two requirements of s 23B(2) are, secondly, that the grant occurred before 23 December 1996 (here plainly satisfied) (sub-s (b)) and, thirdly, that the act be ‘valid’ (sub-s (a)). This word then takes one to s 20(1) of the Native Title (New South Wales) Act 1994 (NSW). It provides:

(1)    If an act is a previous exclusive possession act under section 23B (2) (including because of section 23B (3)) of the Commonwealth Native Title Act and is attributable to the State:

(a)     the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and

(b)     the extinguishment is taken to have happened when the act was done.

35    By itself this would be ineffectual were it not for s 23E of the NT Act for it would be inconsistent with s 9(1) of the Racial Discrimination Act and would be inoperative: s 109, Constitution. Section 23E, however, provides:

If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.

36    Without ss 23C(1) and 23D this makes little sense. They provide:

23C Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth

Acts other than public works

(1)    If an act is a previous exclusive possession act under subsection 23B(2) (including because of subsection 23B(3)) and is attributable to the Commonwealth:

(a)    the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and

(b)    the extinguishment is taken to have happened when the act was done.

…

23D Preservation of beneficial reservations and conditions

If:

(a)    a previous exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(b)    the doing of a previous exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 23C affects that reservation or condition or those rights or interests.

37    Therefore, before s 20(1) can be made operative, State law must protect, broadly speaking, beneficial reservations. Section 21 of the Native Title (New South Wales) Act provides:

If:

(a)    a previous exclusive possession act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples, or

(b)    the doing of a previous exclusive possession act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage),

nothing in section 20 affects that reservation or condition or those rights or interests.

38    This is a preservation within the meaning of s 23D. It follows that the requirements of s 23E are satisfied with the consequence that the extinguishment wrought by the grant of the lease for the reptile park is valid. From this one may safely infer that Lot 95 is not subject to any native title. I so conclude.

Lot 87

39    Like Lot 95, Lot 87 was subject to a business purpose lease under s 28A of the WLA albeit this time for the purpose of ‘camping grounds and cabins’. There is one difference, however, as Mr Beckett pointed out. The lease in relation to Lot 87 appears to have been granted on 23 September 1993. By that time, the original gazette notice of 27 June 1906 had been superseded by a declaration made by the Minister on 17 November 1989. That declaration, too, permitted leases for business purposes. It follows that, as with Lot 95, this lease was authorised by s 28A of the WLA.

40    The same analysis applies with the minor difference being that cl 3(6) of the Schedule to the NT Act not only includes ‘tourist accommodation and facilities’ but also ‘caravan and camping park’ and ‘holiday accommodation’. I am satisfied that the camping grounds are a ‘caravan and camping park’ and that the ‘cabins’ are ‘holiday accommodation’.

41    Apart from that Lot 87 is analytically identical to Lot 95. I conclude that native title was extinguished by the grant of this lease.

Lot 2

42    Lot 2 was leased under s 28A of the WLA on 18 November 1967 for the purposes of a residence. Because the grant occurred before the passage of the Racial Discrimination Act there is no question but that it was valid. The only question is, therefore, whether it is an exclusive possession act under s 23B(2) of the NT Act which devolves, in turn, to the question of whether the purpose for which the lease was granted appears in the Schedule. The purpose of ‘residence’ appears in cl 3(8). Accordingly, native title has been extinguished.

Lot 8

43    A notice in the New South Wales Government Gazette for 12 January 1910 shows that on that date a lease for the ‘special purpose’ of ‘business’ was granted under s 28A of the WLA. Such a lease is not one of the interests referred to in the Schedule so that s 23B(2)(c)(i) (which Lots 85, 87 and 2 all fall within) cannot sustain Lot 8. However, s 23B(2)(c)(iii) refers to ‘a commercial lease that is neither an agricultural lease nor a pastoral lease’. The gazetted notice for this lease refers to it as being in the village of Wallangulla (the former name of Lightning Ridge). The plan of Section 15 (of which Lot 8 is but a part) shows it as plainly being within the town. I infer from that that it was not a lease for pastoral or agricultural purposes. Accordingly, s 23B(2)(c)(ii) applies. It follows that native title has been extinguished.

Relief

44    All of the notification requirements have been satisfied and it is shown that there is no native title with respect to the four lots. I will declare that the following parcels of land are not subject to native title:

(a)    Lot 95 in Deposited Plan 47951;

(b)    Lot 87 in Deposited Plan 822053;

(c)    Lot 2 in Section 12 of Deposited Plan 758612; and

(d)    Lot 8 in Section 15 of the Deposited plan 758612.

45    There should be no order as to costs.

Associate:

Dated:    31 July 2012