FEDERAL COURT OF AUSTRALIA
FEDERAL COURT OF AUSTRALIA
Gandangara Local Aboriginal Land Council v Attorney General of New South Wales  FCA 646
1. In paragraph 71(a), replace “Lot 4” with “Lot 3”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
Dated: 20 August 2013
IN THE FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
1. There be a native title determination that no native title exists in Lot 3 of Deposited Plan 807 482 in the Parish of Holsworthy, County of Cumberland in the Shire of Sutherland in New South Wales.
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.
NEW SOUTH WALES DISTRICT REGISTRY
NSD 164 of 2012
GANDANGARA LOCAL ABORIGINAL LAND COUNCIL
THE ATTORNEY GENERAL OF NEW SOUTH WALES IN HIS CAPACITY AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993
3 JULY 2013
REASONS FOR JUDGMENT
1 The issue is whether the Court should make a determination that no native title exists in land which is the subject of an application made by the Gandangara Local Aboriginal Land Council (GLALC) under s 61 of the Native Title Act 1993 (Cth) (the NT Act).
2 The land the subject of the application is Lot 3, DP 807 482 in the Parish of Holsworthy, County of Cumberland in the Shire of Sutherland in New South Wales (the relevant land). The area is known as Barden Ridge. Its street address is 290 New Illawarra Road, Barden Ridge. Broadly speaking, the relevant land is situated between New Illawarra Road and Old Illawarra Road. It is close to existing urban development to the east. The relevant land has an area of 33.72 hectares.
3 GLALC is a body corporate established under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (the ALR Act). The relevant land was granted to it on 12 October 2011 as a result of a successful land claim under the ALR Act. The land claim included other land in addition to the relevant land. In accordance with s 36(9) of the ALR Act, any such transfer of lands is for an estate in fee simple subject to any native title rights and interests existing in the land immediately before the transfer.
4 Section 42(1) of the ALR Act prohibits an Aboriginal Land Council from dealing with land vested in it subject to native title rights and interests under s 36(9) unless the land is the subject of an approved determination of native title within the meaning of the NT Act. GLALC wishes to sell the relevant land to a related entity for the purposes of residential development, while also maintaining a significant part of the relevant land for conservation as proposed in a draft voluntary planning agreement (VPA) under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) with the State Minister for Planning and Infrastructure. It is proposed that the GLALC will provide a covenant for conservation in respect of those parts of the relevant land which are zoned “Environmental Bushland”.
5 GLALC’s application was filed on 3 February 2012. It has taken almost 18 months for the application to be determined. This is most unfortunate. The delay has been caused in large measure by the time taken by GLALC to provide sufficient evidence to support its application. As will emerge below, further delay was occasioned by GLALC belatedly raising an alternative basis for its application, which led to the Attorney-General of New South Wales providing additional evidence more than 16 months after the application was originally filed. That additional evidence established that native title in the relevant land had been extinguished by the grant of various estates in fee simple.
Summary of the relevant legislative scheme under the NT Act
6 Part 3 of the NT Act deals with the making of an application to the Court for a determination of native title in respect of land for which there is no approved determination of native title. A native title determination application as referred to in s 13 can be made by persons identified in s 61. An application can be made inter alia by a person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought. I am satisfied that the GLALC is such a person in respect of the relevant land.
7 Part 4 of the NT Act deals with the exercise of the Court’s jurisdiction to determine applications relating to native title. Section 86G of the NT Act empowers the Court to make an order in respect of an application made under s 61 of the NT Act without holding a hearing in particular circumstances. They include circumstances where, in a proceeding in relation to an application under s 61, but after the end of the period specified in the notice required to be given under s 66, the application is “unopposed” and the Court is satisfied of various matters. Those matters include that it is within the power of the Court to make an order in the terms sought by the applicant and if it appears appropriate to the Court to do so.
8 In Ngambri Local Aboriginal Land Council v Attorney-General of New South Wales  FCA 1484, Jagot J took the view that it was appropriate for an application under s 61 to be determined in open Court notwithstanding the Court’s discretion under s 86G and even though the application was unopposed. Her Honour came to that view having regard to the nature and effect of the Court’s determination of such an application. In particular, consistently with observations made by Emmett J in Munn (for and on behalf of the Gungarri People) v Queensland (2001) 115 FCR 109 at , her Honour emphasised that the determination of such an application involves property rights and has a wider application than an order made inter partes.
9 I respectfully agree with her Honour’s approach, although I would add that each case will necessarily turn on its own particular circumstances. It would deny the Court’s discretion under s 86G if the view was taken that every application had to be determined in open Court. This case is a good example of the need for some flexibility to accommodate individual circumstances. The material initially filed by the applicant in support of its application required further explanation and substantial expansion. It was appropriate to conduct an oral hearing to highlight those evidentiary deficiencies. The applicant subsequently adduced evidence aimed at addressing those deficiencies. As noted above, the Attorney-General of New South Wales also adduced additional evidence arising from the applicant’s belated claim that native title had also potentially been extinguished. As GLALC’s application was not opposed, I considered that it was appropriate to finalise the application on the papers, taking into account that additional material and in circumstances where no party sought a further oral hearing.
10 As noted above, by an application filed on 3 February 2012, GLALC seeks a determination that the relevant land is not subject to native title.
11 Until recently, the GLALC’s application was put forward on the sole basis that no native title rights or interests exist in the relevant land. No claim was made until quite recently that native title rights had been extinguished. Initially, the applicant relied only on two affidavits of Elizabeth Wilson in support of its application and its claim that no native title rights or interests applied to the relevant land. Ms Wilson is the Education, Training and Employment Manager of the GLALC and also has management responsibilities for its land claims. Ms Wilson swore a second affidavit after the Attorney-General of New South Wales (the first respondent) raised various concerns about the adequacy of the evidence in Ms Wilson’s first affidavit.
12 It is convenient to outline the key relevant parts of Ms Wilson’s first affidavit, then describe some of the difficulties it presented before describing the contents of Ms Wilson’s second affidavit and other evidence subsequently adduced by the applicant.
Ms Wilson’s first affidavit
13 Ms Wilson gave evidence that GLALC notified its members on or around 30 November 2011 of a meeting to be held on 14 December 2011 to discuss a proposed change of use of the relevant land. The meeting proceeded on 14 December 2011. A quorum was present and the following resolution was passed:
(a) The members of Gandangara Local Aboriginal Land Council have considered the cultural and heritage significance, if any, of the land described as Lot 3 DP 807482 to Aborigines and have determined that the land described as lot 3 DP 807482 be disposed of by way of sale to a special purpose company established by Gandangara Local Aboriginal Land Council within 2 years as a single lot for an amount of not less than the current market value of the lot as determined by an independent valuation commissioned by Gandangara Local Aboriginal Land Council (as set out in the PowerPoint slides presented to members); and
(b) The members of the Gandangara Local Aboriginal Land Council authorise the Chairperson of the Board and the CEO of Gandangara Local Aboriginal Land Council to jointly execute any documents necessary to give effect to the disposal of all land[s], once approved by the Members of GLALC and NSWALC.
14 The minutes of the meeting record Motion 15 as being carried by a vote of 53 to 6. Ms Wilson also stated that the resolution was in line with the goals and agenda GLALC’s Community, Land and Business Plan dated 2009-2013, but no specific reference was made to any particular aspect of that lengthy document in support of that statement.
15 Ms Wilson further deposed that, on 13 January 2012, she had received from the National Native Title Tribunal (NNTT) the results of a Native Title Search of the Sutherland Shire Local Government Area which indicated no native title interests affecting the relevant land. The search involved various databases held by the NNTT, comprising the:
Schedule of Applications (unregistered claimant applications);
Register of Native Title Claims;
National Native Title Register;
Register of Indigenous Land Use Agreements; and
Notified Indigenous Land Use Agreements.
16 Ms Wilson further deposed that, on or about 6 February 2012, the GLALC lodged a land dealing application with the New South Wales Aboriginal Land Council in accordance with s 42G of the ALR Act.
Intervention by the Attorney-General and NTSCorp Limited
17 In accordance with s 66 of the NT Act, steps were taken to notify relevant parties of the GLALC’s application to the Court. Following that notification, the Attorney-General of New South Wales and NTSCorp Limited were joined as respondents in the proceedings.
18 The Attorney-General filed an outline of written submissions on 21 September 2012 concerning the application. The main relevant points initially raised by the Attorney-General can be summarised as follows.
19 The Attorney-General contended that the caselaw had identified two methods for demonstrating that no native title rights or interests exist in respect of land. One method is to establish that any native title rights have been extinguished (the extinguishment method), while the other is to establish by evidence that no native title rights or interests exist. As noted above, GLALC’s application was initially made relying only on the latter method.
20 The Court’s attention was drawn to various observations made by other judges of the Court concerning that method. Reference was made to Sackville J’s statement in Kennedy v Queensland (2002) 190 ALR 707 at 714 to the Court taking into account “admissible evidence” in determining whether it is appropriate to make an order. Reference was also made to Perram J’s remarks in Gandangara Local Aboriginal Land Council v Minister for Lands for the State of New South Wales  FCA 383 at  to the effect that such applications are usually accompanied “by evidence of a person who might be expected to have knowledge of the existence or otherwise of a native title interest”. To similar effect, Cowdroy J remarked in Worimi Local Aboriginal Land Council v Attorney-General of New South Wales  FCA 146 at  that “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”. The value of such evidence was also emphasised by Jagot J in Ngambri at . In so doing, reference was also made to the following comments by Owen J in Ejai v Commonwealth (unreported Supreme Court of Western Australia, 18 March 1994) at page 9:
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.
21 Jagot J described as “invaluable” evidence given by an aboriginal elder in Ngambri who personally knew the land in question and gave evidence to the effect that the land did not have any cultural or heritage significance for Ngambri people.
22 The Attorney-General also drew attention to the fact that in Nambucca Heads Local Aboriginal Land Council v Minister for Lands  FCA 624, in concluding that there was no native title in the land in question, Perram J took into account the fact that the local aboriginal land council had resolved that the land in question was not of cultural significance to local Aborigines in the sense of it not having significance for their traditions, observances, customs, beliefs or history.
23 While not opposing the application, the Attorney-General initially submitted that Ms Wilson’s first affidavit, including the resolution passed by the GLALC, did not demonstrate that no native title rights or interests existed in the relevant land. That is because, while the resolution showed that a majority of the GLALC considered the cultural and heritage significance of the relevant land, the resolution in its terms did not state that the relevant land “was not of cultural significance”. I agree with those initial submissions.
24 As noted above, the applicant belatedly raised a claim that native title rights in the relevant land had also potentially been extinguished by the grant of mining tenements previously granted over the relevant land. After inquiring into that claim, the Attorney-General filed further submissions and supporting evidence, which demonstrated that previous exclusive possession acts (PEPAs) for the purposes of the NT Act wholly extinguished native title rights and interests, if any, in the relevant land.
25 The Attorney-General’s final position was not to oppose GLALC’s application and to submit that any native title rights and interests that may have existed in the relevant land had been wholly extinguished by several PEPAs.
26 Ms Wilson’s second affidavit: The applicant was given an opportunity to adduce further evidence in support of its application. Initially, it did so by filing a second affidavit of Ms Wilson on 5 December 2012. Ms Wilson’s second affidavit attached an Aboriginal Heritage Assessment Report dated December 2011 carried out by Mary Dallas Consulting Archaeologists (the Report). The Report was apparently made to an entity called Arben Management on behalf of the GLALC.
27 The Executive Summary to the Report states that an Aboriginal Heritage Assessment had been undertaken by Mary Dallas Consulting Archaeologists of lands at West Menai in the Sutherland Shire. The lands the subject of the study are described as “Heathcote Ridge” and are said to be around 860 hectares in size. It is said that 509 hectares are proposed as conservation lands, with the remainder being considered for urban development. It is evident from the Report’s description of the lands the subject of the assessment that it includes the relevant land (see page 8 of the Report). As noted above, the relevant land has an area of 33.7 hectares.
28 It is stated that the study had sought to provide accurate and updated information on the location of Aboriginal heritage sites within that overall area, with particular consideration to areas proposed for future development. It records how a total of 41 previously recorded Aboriginal heritage sites and 40 newly recorded such sites had been identified as being proximate to potentially developable areas. Two additional areas of potential Aboriginal cultural significance had been suggested by some Aboriginal people, but queried by others. It further states that several areas of potential archaeological significance may be affected by proposed development and that further investigation was required to determine whether those areas contained any Aboriginal archaeological remains. The Report also concludes that additional Aboriginal community consultation is needed in relation to clarifying the location, nature, extent and significance of two areas of purported Aboriginal cultural significance within and near the subject lands. The Report states that implementation of certain recommendations would “provide a solid basis for the preparation of an Aboriginal Heritage Management Plan to guide the ongoing management and protection of Aboriginal heritage in relation to future development within the subject lands”.
29 In her second affidavit, Ms Wilson drew attention to the fact that as part of the study and assessment giving rise to the Report, a public notice seeking registrations of interest was published in the St George and Sutherland Shire Leader newspaper and the Koori Mail newspaper. No responses were received to those public notices. In addition, notices were sent to a list of potentially interested agencies, including GLALC, NTSCorp and the NNTT. The responses received led to further enquiries being made of various other potentially interested persons and bodies, including the Cubbitch Barta Native Title Claimants Aboriginal Corporation, the Kurranulla Aboriginal Corporation and some private individuals. This led to three private individuals being listed as registered aboriginal parties. Materials relating to these matters were annexed to Ms Wilson’s second affidavit.
30 That affidavit also annexed a list of sites registered on the Aboriginal Heritage Information Management System (AHIMS) maintained by the NSW Department of Environment and Climate Change. Ms Wilson states in her second affidavit that the relevant land is recorded as containing no sites of cultural significance, I was unable to local any reference to that effect in the AHIMS material. Similarly, although Ms Wilson deposed that there are no sites of cultural significance shown in a summary Table of Aboriginal sites within the land the subject of the Report, the Table is written in such a way that I was unable to verify that claim. I had similar difficulties in verifying Ms Wilson’s claims regarding various “update forms” which comprise Appendix B3 of the Report.
31 In all those circumstances, the matter was listed for a further brief oral hearing to provide the parties, particularly the applicant, with an opportunity to clarify the uncertainties presented by its evidence in support of its application.
32 The matter resumed before me on 19 March 2013. The applicant sought to rely upon both Ms Wilson’s affidavits as providing an adequate evidentiary foundation for me to make the order sought by it. I raised with Ms Wilson a number of concerns with that material. In particular I highlighted the following difficulties:
(a) the GALC resolution did not state in its terms that those present and voting at the relevant meeting had not only considered the Aboriginal heritage and cultural significance of the land, but had also positively determined that the relevant land had no such heritage or cultural significance;
(b) the various materials relied on in the Report left unclear whether the statements relied upon related specifically to the relevant land, as opposed to other parts of the wider area the subject of that Report; and
(c) unlike other previous cases, there was no affidavit evidence from any qualified aboriginal elder giving informed evidence about the cultural and heritage significance to Aboriginals of the relevant land.
33 In the light of these difficulties, the applicant sought and was granted an adjournment for eight weeks to provide it with an opportunity to adduce further evidence in support of its application. That adjournment was not opposed by either of the respondents. I indicated that, depending upon the nature and extent of any further evidence, the application might be able to be determined on the papers. I also granted the parties an opportunity to file and serve brief written submissions going to the question as to whether the application should be granted having regard to all the relevant material. Both the applicant and the Attorney-General availed themselves of that opportunity.
The applicant’s further evidence
34 The applicant filed two further affidavits after the hearing on 19 March 2013. The first is an affidavit dated 21 May 2013 by Mr Steve Williams, an aboriginal elder in the applicant’s community. Mr Williams gave evidence, which I accept, that he has lived in the greater Liverpool area for approximately 40 years and, throughout that entire time, he was not aware of any existing or ongoing Aboriginal traditional activities or practices taking place on the relevant land.
35 The applicant also filed an affidavit dated 21 May 2013 by Mr Alfred Sing, who is a project manager with the applicant, with responsibility for education, employment and training. Mr Sing’s affidavit dealt with some of the matters which were the subject of Ms Wilson’s earlier affidavits, but he also dealt with some new matters and provided further documentary material in support of the application. In broad terms, his affidavit deals with the following topics:
the history and grant of the applicant’s land claim under the ALR Act;
the meeting of GLALC held on 14 December 2011, including the passing of the resolution described in  above;
the filing of the current application;
GLALC’s application dated 3 February 2012 to the New South Wales Aboriginal Land Council under s 42G of the ALR Act concerning GLALC’s proposed dealing in respect of the relevant land;
a further meeting of the GLALC held on 27 March 2013;
the draft VPA;
a supplementary draft report dated December 2012 by Mary Dallas Consulting Archaeologists dealing specifically with the relevant land; and
the outcome of various searches and enquiries in relation to dealings with the relevant land prior to the applicant obtaining legal title in October 2011 consequential upon its successful land claim under the ALR Act.
36 It is convenient to expand upon some of those matters.
GLALC’s proposed dealing with the relevant land
37 Following the GLALC meeting held on 14 December 2011, GLALC sought the approval of the New South Wales Aboriginal Land Council (NSWALC) to a proposed dealing with the land. Such approval was required under s 42G of the ALR Act. The proposed dealing involved the sale of the land and was said to be part of the GLALC approved community, land and business plan. The application was apparently accompanied by various annexures (although none was attached to the copy of the application annexed to Mr Sing’s affidavit).
38 Mr Sing also attached copies of the papers relating to the relevant land which were placed before the meeting of the GLALC held on 27 March 2013 (i.e. post the Court hearing on 19 March 2013). The agenda papers refer to a proposed notice of motion seeking approval of the VPA for the “Heathcote Ridge Project”, as well as a proposed notice of motion seeking approval for the sale of the relevant land to an entity called “Lot 3 (South) Barden Ridge Ltd”. A power point presentation was included in the meeting papers. It contains the following relevant statements:
• The site may have areas of cultural and heritage significance in the parts of the site zoned “Environmental Bushland”. These areas will be protected by way of a covenant for conservation proposed as part of the Heathcote Ridge VPA. The covenant will prevent development of these areas of the site. There are no areas of cultural or heritage significance in the land zoned “Residential”.
• The land will be sold:
- under the terms of the NSW Standard Contract;
- to Lot 3 (South) Barden Ridge Ltd;
- at the assessed market value determined by a registered valuer engaged by GLALC; and
- subject to a covenant to protect the conservation areas of the site. The covenant is the subject of Notice of Motion 3 as is set out in Annexure B of the Heathcote Bridge VPA.
• The proceeds of the sale will be managed and applied:
- for the benefit of members of GLALC and the local Aboriginal community;
- in a manner consistent with the Gandangara Local Aboriginal Land Council Community, Land and Business Plan.
• Lot 3 (South) Barden Ridge Ltd will:
- Have the same Board of directors as GLALC and provisions of its constitution will require that the Boards of GLALC and a special purpose entity at all times comprised of the same persons; and
- Is established for the stated purpose of providing money, property and other benefits to relieve poverty and improve, protect and foster the best interests of disadvantaged Aboriginal persons within the GLALC Area.
• The GLALC Members note that this resolution (or similar) has been before the membership, on several occasions before, and continues to be refused by NSWALC on the basis that the GLALC Membership is allegedly not fully informed;
• The GLALC membership rejects the claim that they are not fully informed;
• The GLALC membership resolves that the sale of LC 6409 [the relevant land] is progressed immediately;
• It is the desire of the GLALC Membership that NSWALC will cease all further delays and prevarications and approve this Land Dealing Application expeditiously.
39 The Minutes of the meeting held on 27 March 2013 record that the following resolution was passed by a vote of 51 to 0 (with 4 abstentions):
The Members resolve that:
(a) the sale of Lot 3 in Deposited Plan 807482 (otherwise known as Land Claim 6409) in accordance with an agreement that requires the imposition of a covenant as proposed in the Heathcote Ridge VPA would have no impacts on the cultural or heritage significance of the land to Aboriginals and
(b) Upon GLALC obtaining an approved termination of native title within the meaning of the Commonwealth Native Title Act, the property should be disposed of by sale.
40 Another resolution was also passed at that meeting which, although worded clumsily, appears to approve various land in the Heathcote Ridge project being subject to the proposed covenant, including the relevant land.
41 Mr Sing’s affidavit attached a copy of the proposed VPA between GLALC and the Minister for Planning and Infrastructure. The proposed VPA covers an area of land which includes the relevant land. Under the proposed VPA, GLALC would agree to provide development contributions to meet the additional demand created by the proposed development and also enter into the VPA with the Minister to secure those development contributions. The development contributions include the implementation of a biodiversity management plan and the registration of a s 88E instrument containing the conservation terms on the title or titles to the conservation land. The conservation land is defined as meaning a site of approximately 566 hectares, forming part of the overall area the subject of the proposed development.
42 The draft VPA was accompanied by an explanatory note prepared by the Minister and GLALC as required by reg 25E of the Environmental Planning and Assessment Regulation 2000 (NSW).
43 The key points to emerge from that explanatory note may be summarised as follows:
GLALC offers to enter into the VPA in connection with a request to amend an environmental planning instrument to rezone a site at West Menai for urban purposes. The rezoning proposal involves:
51.4 hectares of employment land;
182.7 hectares of land for residential and associated purposes;
new sports fields and open space (17.2 hectares);
the provision of a 566 hectare conservation area; and
provision for an east-west arterial road connecting New Illawarra Road with Heathcote Road and other relevant road upgrades;
the total area covered by the proposed VPA is 849 hectares of land adjacent to Heathcote Road; and
the objective of the VPA is said to be to “secure public benefits in connection with the proposed amendments to an environmental planning instruments for rezoning a site for urban development” and would facilitate GLALCs “contributions towards… conservation works”, including a conservation contribution consisting of a draft Biodiversity Management Plan.
Revised report by Mary Dallas Consulting Archaeologists
44 Mr Sing’s affidavit also attached an updated draft heritage assessment report dated December 2012 (the revised report) carried out by Mary Dallas Consulting Archaeologists. The significant points to note about the revised report may be summarised as follows:
the revised report was prepared specifically in respect of the relevant land (which is referred to in the revised report as “the subject land”);
it was prepared “to meet the Aboriginal heritage requirements of Sutherland Shire Council in relation to a Development Application for the proposal” and Council’s request that an Aboriginal heritage impact assessment be undertaken for the current proposal as the subject land is within an area of “Archaeological Sensitivity”;
it draws on research which was conducted as part of a State Significant Site study for the Heathcote Ridge Development Proposal which includes a further 825 hectares of land to the north of New Illawarra Road (i.e. in addition to the relevant land, which is approximately 34 hectares in size);
it records extensive consultation being undertaken with the Aboriginal community by the authors in the context of the preparation of the broader State Significant Site study in 2010-2011. That consultation included:
the publication in local newspapers of public notices seeking registrations of interest in the project from Aboriginal people with cultural knowledge about the broader Heathcote Ridge study area, including the relevant land;
as a result of that process, three local indigenous people were registered as “registered Aboriginal parties”. They were provided with information about the Heathcote Ridge proposal and asked to comment on inter alia any objects or places of cultural value to Aboriginal people within the area. The responses did not contain information of specific relevance to the relevant land or immediate surrounds;
a draft copy of the State Significant Site report was sent to the three registered Aboriginal parties in July 2011 for comment and no information or comments of specific relevance to the relevant land were received;
some comments were received from individual Aboriginal persons as a result of public exhibition of the State Significant Site study in early 2012, however, none of those comments related to the relevant land or immediate surrounds; and
this led to further consultation which confirmed that no additional sites or areas of Aboriginal cultural significance existed within the boundaries of the relevant land.
45 The revised report concludes as follows:
In summary, Aboriginal community consultation has recently been undertaken… This has included consultation with the senior Dharawl descendent (Dr Shayne Williams) of Aboriginal people associated with the specific Mill Creek area, as well as Dharawl descendent and local resident Dr Les Bursill and local Aboriginal Elder Max Dulumunmun Harrison. As a result of this process, no specific information about previously undocumented Aboriginal sites or areas of Aboriginal cultural significance has been identified in relation to the current subject land or areas immediately adjacent. No further Aboriginal community consultation was therefore considered necessary or warranted in relation to the current proposal.
46 The revised report also records that searches were conducted of various registers, including the AHIMS Register and the NSW State Heritage Inventory, which searches revealed no items within or adjacent to the relevant land having Aboriginal heritage values.
47 The revised report also summarises various local archaeological research surveys of the broader area and relevant land carried out since 1981. It concludes that “despite the number of studies previously undertaken, no Aboriginal sites have been recorded within or immediately adjacent to the subject land”.
48 The following additional relevant conclusions are recorded in the revised report at pages 31 and 32:
The current development proposal will not directly affect any currently documented items of Aboriginal heritage, or any areas of assessed Aboriginal archaeological potential, either within rockshelters or in open contexts. The entirety of the area proposed for subdivision, as well as the adjacent asset protection zone fall within an area assessed as having low to no Aboriginal archaeological sensitivity in which further undocumented Aboriginal heritage sites or areas of potential are not anticipated to occur (see Figure 10).
In other portions of the subject land outside of the assessed areas of low to no Aboriginal archaeological sensitivity, there remains some possibility that currently undocumented rockshelter sites (with archaeological evidence or potential archaeological evidence) may occur. As noted, these would be most likely to be present in the uppermost or lowermost portions of the slope. No shelters have been documented in the upper slopes by the current or any previous surveys of the subject land, and any such shelters would be unlikely to be accessed from the flatter areas within the current subject land…
There is therefore considered to be a very low likelihood that the current proposed subdivision will indirectly impact any potential archaeological sites within the immediate vicinity due to increased visitation. In the absence of any documented Aboriginal sites within the subject land and/or within close and accessible proximity to the areas proposed for development, no further investigation or mitigative measures are considered warranted in relation to the current proposal.
The portion of the subject land currently proposed for development contains no documented or potential Aboriginal archaeological sites or areas of documented Aboriginal cultural significance. It retains no Aboriginal archaeological sensitivity and consequently no further Aboriginal archaeological investigation is considered warranted in relation to the current development proposal.
GLALC’s belated claim that native title rights had been extinguished
49 As noted above, in its amended submissions dated 21 May 2013, GLALC contended for the first time that the Court could also find that native title rights and interests over the relevant land had been potentially extinguished through previous dealings allegedly relating to:
(a) mining tenements; and
(b) a previous grant of fee simple title in the relevant land to Landcom.
50 No evidence was adduced in respect of the first of those claims. Very limited evidence was advanced in support of the second of those claims.
51 The Attorney-General of New South Wales sought and was granted additional time to respond to GLALC’s claims of potential extinguishment of native title. The Attorney-General subsequently filed an affidavit by Mr Adam Fennell, who is a Senior Status Officer in the Crown Lands Division of a department called “New South Wales Trade and Investment”. Mr Fennell gave evidence concerning searches which he had conducted into the relevant land. His inquiries revealed the following matters:
(a) the relevant land was previously comprised of parcels of land known as Portions 1, 15, 123 and 124 of the Parish of Holsworthy, County of Cumberland;
(b) each of these Portions was the subject of a grant in fee simple by the Crown in the 19th Century;
(c) in 1913, the relevant land was acquired by the Commonwealth for the purposes of defence;
(d) in 1984 the relevant land was transferred to the Crown and became Crown land within the meaning of the Crown Lands Consolidation Act 1913 (NSW);
(e) in 1988, a folio for the relevant land was created under the Real Property Act 1900 (NSW);
(f) after 2000, the relevant land became subject to reservations for future public requirements; and
(g) the relevant land was granted to GLALC as a result of the land claim under the ALR Act.
52 As noted above, in the light of Mr Fennell’s evidence, the Attorney-General submitted that any native title rights and interests that may have existed in the relevant land had been wholly extinguished by various PEPAs, being the grants of those freehold estates in relevant Portions of the relevant land.
53 It is convenient to first deal with the applicant’s original case, namely that there was evidence which established that no native title rights or interests exist in the land.
(a) Evidence demonstrating that no native title rights or interests exist in the relevant land
54 On the basis of the applicant’s evidence summarised above, with particular emphasis on the fresh evidence provided by Mr Sing, I am satisfied that the relevant requirements of the NT Act have been met and that no native title exists in the relevant land. Some aspects of that evidence deserve further comment. First, in assessing the weight to be attached to the evidence relating to the meeting held by the GLALC on 27 March 2013, it is important to draw a distinction between material relating to the Heathcote Ridge project generally and the relevant land specifically. Although reference is made in the power point presentation to the possibility of the relevant land having areas of “cultural and heritage significance in the parts of the site zoned “Environmental Bushland”, the revised report concludes that the entirety of the relevant land was assessed as having low to no Aboriginal archaeological sensitivity and that there were no documented Aboriginal sites within the relevant land and/or within close and accessible proximity to the areas proposed for development.
55 Secondly, the proposed covenant, which will affect part of the relevant land, is intended to protect possible areas of cultural and heritage significance in the parts of the relevant land which are zoned “Environmental Bushland” and which will not be developed. Having regard to the absence of any evidence demonstrating that any part of the relevant land has any Aboriginal archaeological sensitivity, the covenant should be seen as a step taken in abundant caution rather than undermining the findings of the revised report and the other evidence described above indicating that the relevant land has no Aboriginal cultural or heritage significance.
56 Thirdly, I consider that the resolution passed at the GLALC meeting on 27 March 2013 indicates that members of the local indigenous community have appropriately considered the question of the cultural and heritage significance of the relevant land and determined that it is not of cultural significance to local Aborigines. In other words, unlike the previous resolution, this resolution sufficiently establishes that the relevant land is not of cultural significance to local Aborigines in the sense of it not having significance for their traditions, observances, customs, beliefs or history (see  above).
57 Fourthly, reference is made in the meeting papers to the NSWALC opposing the proposed dealing on the basis that the GLALC membership is not fully informed. No further evidence was provided as to the nature of the NSWALC’s concerns. In particular, there is no suggestion that the NSWALC’s apparent concern that the GLALC membership is not fully informed relates to cultural or heritage issues which might give rise to native title rights or interests. The Court notes that under s 42G(3)(c) of the ALR Act, in considering whether a proposed land dealing by a Local Aboriginal Land Council is contrary to the interests of the members of that Council or other Aboriginal persons within the area of the Council, the NSWALC may consider whether, in passing the relevant resolution, the Council had proper regard to “the cultural and heritage significance of the land to Aborigines”. Ultimately, it will be a matter for the GLALC to provide the NSWALC with sufficient material to enable the NSWALC to make an informed decision under s 42G of the ALR Act as to whether it should approve GLALC’s proposed land dealing in respect of the relevant land. In dealing with the GLALC’s application under the NT Act, the Court is confined to the evidence before it. Having regard to all that evidence, the Court is satisfied on the basis of that evidence that no native title exists in the land.
58 Fifthly, in its supplementary submissions, the applicant drew attention to what it describes as the “invidious position” in which applicants seeking a determination of no native title are placed in making such an application. The applicant referred to the extreme difficulties presented for it in establishing to the Court’s satisfaction that there are no native title interests in the land where no other parties came forward to make a claim in relation to the relevant land, despite all the consultation and public notification relevant to the matter as outlined above. The Court is not insensitive to these difficulties. They are the consequence, however, of the relevant legislative scheme. In addition, as has previously been recognised, the relief sought by the applicant involves property rights which also have a public interest element in the sense that the making of an order generally operates against the entire world and is not simply an order made inter partes. In those circumstances, absent relevant legislative reform, applicants should expect that the Court will require that sufficient evidentiary material be placed before it before a favourable order will be made.
(b) Extinguishment of native title rights or interests in the relevant land
59 It is also appropriate to say something about the applicant’s alternative case which, as noted above, was belatedly raised for the first time in the applicant’s supplementary submissions filed on 21 May 2013.
60 It is convenient briefly to restate that alternative case. The applicant submitted that the Court could also find that native title in respect of the relevant land had been potentially extinguished through previous dealings affecting the relevant land. The applicant relied on two broad categories of previous dealings in respect of the relevant land, namely:
(a) mining tenements; and
(b) a previous grant of interest in fee simple in the relevant land to a State statutory property development corporation, Landcom.
61 No detail was provided concerning the mining tenements said to have been previously granted over the relevant land. Accordingly, the Court cannot be satisfied that the mining tenements extinguished native title rights and interests.
62 As to the alleged fee simple interest granted to Landcom, the applicant’s case was based on the following claims:
the relevant land was previously transferred to Landcom;
Landcom’s title was declared void after GLALC successfully appealed the transfer in the Supreme Court of NSW; and
title to the relevant land was re-issued to GLALC.
63 Very limited evidence was provided by the applicant in support of these claims. Evidence which was said to relate to the Supreme Court proceedings in fact related to proceedings in the Land and Environment Court concerning the applicant’s successful land claim under the ALR Act. The Court had insufficient evidence before it properly to assess those claims. The Attorney-General of New South Wales also submitted that the relevant land had not been transferred by the State to Landcom.
64 As matters transpired, however, the Attorney-General of New South Wales subsequently provided evidence which does establish that native title rights and interests in the relevant land have been extinguished by reason of the grant of fee simple interests in all Portions comprising the relevant land.
65 As the High Court found in Fejo v Northern Territory (1998) 195 CLR 96 at , native title rights and interests will be extinguished by a grant of fee simple in the subject land. Following the decision in Fejo, amendments were made to the NT Act by the Native Title Amendment Act 1998 (Cth), which introduced ss 23B and 23C. Pursuant to s 23C, native title (where it has existed) will be extinguished over land that is the subject of a “previously exclusive possession act”, as defined in s 23B, attributable to the Commonwealth.
66 Where a PEPA is not attributable to the Commonwealth, but rather to a State or Territory, s 23E of the NT Act allows a State or Territory to make laws with the same effect as s 23C. In the case of New South Wales, this occurred by the enactment of s 20(1) of the Native Title (New South Wales) Act 1994 (NSW), which provides for the extinguishment of native title by an act which is a PEPA as defined in s 23B(2) of the NT Act.
67 Section 23B of the NT Act defines a PEPA as an act (which itself is defined broadly in s 226 of the NT Act) which:
(a) occurred before 23 December 1996;
(b) consisted of the grant or vesting of an interest contained in s 23B(1)(c) (which relevantly includes a freehold estate); and
(c) was valid.
68 The requirement of validity is affected by s 8 of the Native Title (NSW) Act 1994 (NSW), which deems every “past act” (as defined in s 228 of the NT Act) attributable to the State of New South Wales to be valid. As submitted by the Attorney-General of New South Wales, s 19 of the NT Act permits State and Territory Parliaments to validate such past acts for the purposes of s 23B(2)(a), and where such acts constitute, for example, “category A past acts” (as defined in s 229 of the NT Act and which includes the grant of freehold estates), such acts will be deemed to have extinguished native title (see s 10(2) of the Native Title (NSW) Act 1994 (NSW) and 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  FCA 792 at -).
69 I find that Mr Fennell’s evidence establishes that:
(a) on 11 September 1843, there was a grant in fee simple of the land formerly known as Portion 1 of the Parish of Holsworthy to Merlon Moriarty;
(b) on 19 October 1831, there was a grant in fee simple of the land formerly known as Portion 15 of the Parish of Holsworthy to John Lucas;
(c) on 24 September 1888, there was a grant in fee simple of the land formerly known as Portion 123 of the Parish of Holsworthy to Frederick Korff and George Sheppard; and
(d) on 12 December 1888, there was a grant in fee simple of the land formerly known as Portion 124 of the Parish of Holsworthy to Henry Prince, William Henry Gritten, Henry Chetwood Doyle and William George Anslow.
70 I accept the submission made on behalf of the Attorney-General of New South Wales that each of these grants in fee simple constitutes a PEPA which extinguished any native title rights or interests in relation to the relevant land.
71 For all these reasons, I propose to make orders to the effect that:
(a) There be a native title determination that no native title exists in Lot 4 of Deposited Plan DP 807 482 in the Parish of Holsworthy, County of Cumberland in the Shire of Sutherland in New South Wales.