FEDERAL COURT OF AUSTRALIA

Forster Local Aboriginal Land Council v Attorney-General of New South Wales

[2017] FCA 997

ORDERS

THE COURT ORDERS THAT:

1.    Native title does not exist in relation to the land which is Lot 7055 DP 1186158 situated in the Parish of Forster, County of Gloucester within the State of New South Wales.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    The applicant seeks a determination that native title does not exist in respect of particular land. The application relates to s 61(1) of the Native Title Act 1993 (Cth) (the NT Act). The impetus for the application relates to the fact that, under s 42 of the Aboriginal Land Rights Act 1983 (NSW) (the ALR Act), an Aboriginal Land Council in that State must not deal with land subject to native title rights and interest unless the land is subject to an approved determination of native title.

2    For the reasons given below, a determination will be made as sought by the applicant.

Summary of background facts

3    The applicant is the holder of freehold title over land situated on Lakeside Crescent, Elizabeth Beach, which is in the Great Lakes Local Government Area of New South Wales. The relevant land is Lot 7055 DP1186158 (the Land). The Land has an area of 1.994 hectares. The applicant holds the Land in fee simple pursuant to a grant made to it on 5 September 2013 under the ALR Act. The applicant wishes to consent to development of an easement created over the Land in favour of a neighbour pursuant to an agreement between the neighbour and Department of Lands as the immediate predecessor in title. The purpose of the neighbour’s development application is to construct a road facilitating access to the neighbour’s property through the easement. The neighbour has agreed to pay all costs of the development, including the costs of obtaining the applicant’s consent as owner of the Land. The Court was informed that the determination would also allow the option of subdividing a small area of land affected by the neighbour’s proposed development and its sale to the neighbour. The Court was informed that the applicant will either consent to the lodgement of the development application or agree to excise that part of the Land affected by the easement.

4    Notwithstanding that the applicant initially sought three orders in its originating application, it subsequently indicated that it was content if the Court made the following determination:

That Lot 7055 DP 1186158 is not subject to any native title rights or interests.

Some procedural matters

5    The application was filed on 17 February 2016. It was notified under s 66 of the NT Act on 1 June 2016. The notification period closed on 31 August 2016, by which time no application for a determination of native title had been filed in respect of the Land. The State of New South Wales is a respondent to all native title applications in the State. NTSCORP Limited (NTSCORP), the State native title representative body, was joined unopposed as a respondent party on 5 December 2016 by a Registrar of the Court.

6    In December 2016, the Registry received correspondence from a third party, Ms Elvina Oxley, who complained that members of the applicant were only made aware of the 5 December 2016 directions hearing and the application itself on or around 5 December 2016.

7    On 7 March 2017, at the case management hearing, Mr Wright, counsel for the applicant, noted that he was aware of the correspondence between Ms Oxley and the Registry but had no specific instructions as to the state of Ms Oxley’s knowledge of the proceedings. Mr Wright said that he did not understand Ms Oxley to be making an assertion about the existence of native title but rather she was raising a concern about the notice to members of the application itself and that he would need to take more detailed instructions. The Court said that there may be a question as to whether the application was one which required a resolution of the voting members of the local council under s 52G of the ALR Act and that the applicant should give consideration to that issue. On 20 July 2017, my associate emailed the parties noting that the Court was minded to determine the application on the papers, and that any party who opposed this approach should say so in writing by 5pm on 26 July 2017 and set out the grounds of their opposition. No opposition to the matter being determined on the papers was subsequently raised. Nor did anyone else, including Ms Oxley, seek to be joined in the proceeding or be heard.

8    At the 7 March 2017 case management hearing, orders were made requiring the parties to file submissions concerning the power of the Court to make a determination that native title does not exist by way of resolving a non-claimant application, having regard to Reeves J’s judgment in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466 (Badimia). Directions were also made for the parties to file evidence and submissions in relation to the non-claimant application.

9    By consent, the Court made orders on 8 June 2017 that the proceeding would be determined unopposed in accordance with s 86G of the NT Act and without holding a hearing. By a notice dated 7 June 2017, NTSCORP said that it did not oppose orders in, or consistent with, the terms sought by the applicant. The Attorney-General was content for the matter to be determined under s 86G and, while not consenting to the application, acknowledged that it was within the power of the Court to make the determination sought by the applicant.

10    The applicant relied upon three affidavits. The first is by Ms Donna Hall and is dated 27 January 2017. Ms Hall deposed that she is an elder and member of the Board of Directors of the applicant. She described how, after the Land was acquired by the applicant, she walked over it and was satisfied that there was no evidence of any activity which held any significant cultural value. She explained that the Land is a strip which borders a main road and there is no specific walking track. She said that the Land is covered with coastal vegetation similar to surrounding scrub and that there is a nearby coastal village. She said that she had consulted the other elders and the members of the applicant and was satisfied that the Land does not have cultural significance to her people. She said that she was not aware of any other persons who would have any cultural attachment to the Land. She explained that if the easement is registered, she believed that there would be some minor clearing of scrub on one corner of the Land and provision of a road and drainage to permit access, however, the bulk of the Land would remain as it is.

11    The second affidavit is dated 1 February 2017 and was affirmed by Mr Jay Currie, the Chief Executive Officer of the applicant. Mr Currie deposed that he had reported all developments relating to the application to the Board of Directors of the applicant and he stated that the Board had approved the application. Mr Currie described the events leading up to the making of the application, including the request from the registered proprietor of the neighbouring property (Jarberg Investments Pty Ltd) for the Council to sign a development application which would enable development works of the registered easement over a corner of the Land. Mr Currie said that the work was proposed to be a main road entry point and services as an essential part of the sub-division of the neighbouring property.

12    Mr Currie gave evidence of records which indicated that his predecessor had been advised by the State Aboriginal Land Council in February 2015 that the development application and its easement constituted a dealing for which a consenting signature could only be provided over the Land if it was free of any native title claim. He further described how the neighbouring proprietor had had the Land valued in relation to the area affected by the easement and had agreed to cover any legal costs and filing fees associated with its purchase from the applicant.

13    Mr Currie gave evidence, based on his review of the applicant’s files, of investigations being carried out into the cultural significance of the Land. He explained that the Land borders a main road into a coastal area known as Elizabeth Beach and that it is covered with coastal scrub. He further deposed that he had consulted “the elders and the members of the Land Council” and was satisfied that the Land does not have cultural significance to his people, nor was he aware of any other persons who would have any cultural attachment to the Land.

14    The third affidavit is another affidavit by Mr Currie and is dated 1 May 2017. It attached documents, including a letter dated 16 May 2016 from the National Native Title Tribunal, which stated that the non-claimant application would be publicly notified in the Great Lakes Advocate on 18 May 2016 and in the Koori Mail on 18 May 2016. The letter advised that the notification period would be 1 June 2016 to 31 August 2016. Copies of the notices were attached to the letter. Mr Currie annexed a copy of a search of the National Native Title (NNTT) Register on 10 April 2017, which confirmed that, as at that date, there were no existing registered native title determinations or applications in respect of the Land (NNTT Report).

15    Mr Currie further deposed that, on 26 April 2017, members of the applicant attended an extraordinary general meeting of the applicant to consider proposed resolutions relating to land dealings affecting the Land. The Minutes of that meeting record that there was a quorum present and that the purpose of the meeting was for members “to consider the impact of the land dealings (consenting to Jarberg’s DA, subdivision of Lot 7055 and sale of part Lot 7055) on the cultural and heritage significance of Lot 7055 to Aboriginal people (as well as any native rights and interests in the Land) before members approve or not approve the Land Dealings.”

16    The minutes record the following resolutions being passed:

The members of FLALC having discussed that they are not aware of any native title rights or interests in relation to Lot 7055 DP 1186158 (Lot 7055) and having considered the impact of a lodgement of a development application, subdivision and sale on the cultural and heritage significance of Lot 7055 to Aboriginal people, APPROVE (Subject to a Cultural and Heritage assessment being undertaken by FLALC on the Easement Site before work is carried out, at the expense of the developers):

1.    consenting to a development application by the owner of Lots 51 and 52 DP 1217929 (formerly Lot 1 DP 1130598) (Lot 51) to develop Lot 51 and the construction of a road and infrastructure to services on/under the Right of Access and Easement for Services affecting Lot 7055 and benefitting Lot 51 on the condition that the owner of Lot 51 indemnifies FLALC for all costs associated with FLALC’s consent, including but not limited to the cost of FLALC’s non-claimant native title application over Lot 7055;

Moved: Sonia Thornton

Seconded: Terry Johnstone

Number voted for: 18

Number voted against: 1

Number abstained: 1

2.    subdividing Lot 7055 so as to excise approximately that part of Lot 7055 relating to the Right of Access and Easement for Services affecting Lot 7055 (Easement Site) and selling the Easement Site to the owner of Lot 51 DP 1217929, on the condition that the sale price is not less than current market value as assessed by a qualified valuer in a report that is not more than 12 months old at the date of sale and the purchaser indemnifies FLALC for all costs associated with the subdivision and sale, including but not limited to legal fees, valuation fees, survey and registration fees and land dealing application fees. This approval includes carrying out all incidental land dealings required to subdivide Lot 7055 and sell the Easement Site.

Moved: Helen Quinn

Seconded: Judith Kirby

Number voted for: 18

Number voted against: 0

Number abstained: 2

17    The minutes also refer to a question being asked as to whether a site officer could assess the Land before it is developed and that the following response was provided to that question:

Trent informed the members that it can be a condition subject to the sale that a cultural and heritage assessment needs to be done by the Forster LALC before anything is done.

The parties’ submissions summarised

18    The applicant submitted that native title was extinguished by way of the easement created by the Crown in favour of a road access to the neighbouring property and that the easement was a burden on the Land. It submitted that the building of the road and services pursuant to the easement required the applicant to give its consent to the neighbour’s development application, but there is a statutory prohibition on it from executing dealings other than in accordance with s 42(1) of the ALR Act. It submitted that native title can otherwise only be extinguished by a determination pursuant to s 225 of the NT Act, citing Badimia. It submitted that even if the relevant part of the Land affected by the easement was not an extinguishment, the applicant is entitled to obtain authority over the entirety of the Land by an application under s 225.

19    The applicant relied upon the following eleven steps, tests or considerations in Badimia as being satisfied in this case. First, the determination area is the entirety of Land as defined in the application, and no other claims or joinders have been made by any group over the Land.

20    Secondly, the Court should grant the applicant having regard to the evidence before it regarding occupation and connection.

21    Thirdly, the Court should grant the remedies sought, relying on s 22 of the Federal Court of Australia Act 1976 (Cth).

22    Fourthly, there is no relevant distinction between a positive or negative determination.

23    Fifthly, there is no different process involved between a claimant and non-claimant application.

24    Sixthly, the notification requirements have been satisfied in this case.

25    Seventhly, s 225 of the NT Act does not oblige the Court to give detailed reasons for any determination or describe the nature and extent of any native titled determined.

26    Eighthly, a determination need not involve mediation.

27    Ninthly, the Court is in a position to make a final determination because it should be satisfied that the relevant statutory notices and processes have been met.

28    Tenthly, significance should attach to the fact that the applicant would be the most likely claimant for recognition of native title or interest and its views as to the existence or non-existence of traditional and custom is relevant.

29    Eleventhly, the Court is not required to go behind the actions of the claim group and to search out contradictors.

30    The submissions of the State Attorney-General on Badimia may be summarised as follows. First, he submitted that the Court has power to make a determination that native title does not exist when resolving a non-claimant application, including in a case where the application is uncontested. An uncontested application may raise questions of utility, which may warrant discretionary refusal of the relief sought. It was acknowledged, however, that questions of utility do not appear to arise where the proceedings are brought by a Local Aboriginal Land Council in order to satisfy s 42 of the ALR Act.

31    The Attorney-General acknowledged that the plurality in Badimia (North, Mansfield, Jagot and Mortimer JJ) found that the Court did have power to make a determination that native title does not exist in a claimant application. Particular attention was drawn to [39] of their Honours’ reasons for judgment.

32    Secondly, only Reeves J gave detailed consideration to the Court’s powers in relation to non-claimant applications. Justice Reeves agreed with the plurality that the Court had power to make a negative determination in a claimant application, however, in obiter dicta, Reeves J disagreed with the view of the plurality that a non-claimant application is not an application which “necessarily claims” that native title does not exist. At [105] of Badimia, Reeves J said (emphasis added):

… where an area gains s 24FA protection, it is not easy to identify what is to be gained by the applicant thereafter moving the Court to make a determination that no native title exists in that area. Indeed, because of the necessity for a non-claimant application to remain extant (see at [96] above), such a determination would have the paradoxical effect of finalising the non-claimant application and thereby removing the s 24FA protection. Moreover, given that one of the main effects of s 24FA protection is that any native title that exists in the area concerned is extinguished and replaced by a right to compensation, at least in the case of a non-government non-claimant application, a determination that no native title exists in that area will be pointless. Whether a State government could take such a step either directly by its own government non-claimant application, or through the agency of a non-government non-claimant application, in order to rid itself of the obligation to pay compensation for the extinguishment effected by s 24FA(1)(b) is a difficult question (see below at [109]). Putting that question aside, in my view, these two factors strongly reinforce the conclusion that a non-claimant application cannot be characterised as an application that seeks a determination that native title does not exist on an area.

33    Thirdly, it was submitted that Reeves J should be understood as addressing the issue of utility, rather than power, and that an analogy exists with the notion that declaratory relief must be directed to determining a concrete legal controversy, as opposed to a hypothetical question. Furthermore, it was submitted that Reeves J accepted that the Court had power to make a determination in a non-claimant application, at least where the determination did not lack utility.

34    Fourthly, it was submitted that it is significant that the applicant has not suggested that there has been a future act, validated by the “procedural processes” set out in Pt 2, Div 3, Subdiv F of the NT Act, which has extinguished any native title.

35    NTSCORP supported Reeves J’s judgment in Badimia and, in particular, the general proposition that the Court should not determine non-claimant applications once land is subject to s 24FA protection. However, in circumstances where the ALR Act requires a determination of the existence or non-existence of native title before Aboriginal Land Councils can deal with land, it submitted that the Court has the power to determine the non-claimant application in the particular circumstances of this case. Reference was made to Perram J’s decision in 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 (Lightning Ridge). That proceeding also involved an unopposed non-claimant application by a Local Aboriginal Land Council for a determination that no native title existed over four parcels of freehold land. Justice Perram determined that native title had been extinguished in each of the four parcels as a result of four previous exclusive possession acts as defined in s 23B of the NT Act. Although describing the requirements of s 42(1) of the ALR Act as “unsatisfactory” Perram J made the requested non-claimant application. Similarly, a determination that native title did not exist in land was made by Bennett J in a non-claimant application in Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929; 181 FCR 300 (Worimi No 2).

36    Whilst submitting that it is not logical for the Court to determine a non-claimant application in respect of land which is subject to s 24FA protection (consistently with the view expressed by Reeves J), NTSCORP submitted that this did not deny either the necessity or the power of the Court to determine a non-claimant application having regard to the requirements of s 42 of the ALR Act.

Disposition of the application

37    An approved determination of native title has the meaning given by ss 13(3), (4), and (7) of the NT Act (see s 253 of the NT Act). Section 13 of the NT Act relevantly provides:

(1)    An application may be made to the Federal Court under Part 3:

(a)    for a determination of native title in relation to an area for which there is no approved determination 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) …

38    The NNTT Report shows that there is no approved determination in relation to the Land, as at 10 April 2017. The Court is satisfied that the application meets the requirements of s 13(1) of the NT Act.

39    A determination of native title, as defined by s 225 of the NT Act, is “a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters …”.

40    Item 1 in s 61(1) of the NT Act provides that “a person who holds a non-native title interest in relation to the whole of the area to which the determination is sought” may make an application “… as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title”. Such an application, according to s 253 of the NT Act, is a “non-claimant application” by virtue of it not being a “claimant application”.

41    As the registered proprietor of the Land, the Court finds that the applicant has standing to make an application under s 61(1) of the NT Act.

Formal requirements - notice of the Application

42    Section 66(1) of the NT Act requires the Native Title Registrar to provide copies of the application to the relevant State Minister (s 66(2)) and the appropriate representative bodies (s 66(2A)). The Native Title Registrar is also required to give notice to certain persons or bodies (s 66(3)(a)) and to "notify the public in the determined way" (s 66(3)(d)). Section 66(10)(c) requires a notice under s 66(3)(a) or (d) to include a statement to the effect that “a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months” starting from the date of the notification, or seek leave from the Court to be joined. Once that period has ended, this requirement is satisfied.

43    The Court finds that these formal statutory requirements have been met.

Proof of non-claimant applications

44    Justice Bennett's judgment in Worimi No 2 dealt with a non-claimant application by Worimi Aboriginal Land Council which was opposed by several Aboriginal people. Her Honour observed that the onus of proof lies on the non-claimant applicant, who must prove that, on the balance of probabilities, no native title exists in relation to the land the subject of the application (at [49]).

45    A non-claimant applicant is not required to disprove each of the elements of native title that a claimant applicant must establish ([61] and [88]). However, if a respondent to a non-claimant application establishes that native title may well exist (by adducing for example evidence from “traditional owners” about the boundaries of traditional lands, areas of significance to that group, perhaps supported by archaeological or anthropological evidence), then the non-claimant applicant may be required to refute that evidence (perhaps by demonstrating extinguishment in relation to that area) (affirmed on appeal Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 (Worimi 2010) at [58]). The Full Court emphasised that each case has to be addressed according to its own particular facts.

46    In Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2005] FCA 1712 (Hillig), an unopposed non-claimant application in which orders were sought by consent of the parties (the respondent parties being the Minister for Lands and the representative body) was granted by Bennett J on the basis that:

(a)    notice had been given to the relevant representative body under s 66 of the NT Act;

(b)    public notice had been given under s 66 of the NT Act and no response received following that notice; and

(c)    NNTT searches established that there was:

(i)    no previous approved determination of native title in the land the subject of the application; and

(ii)    no current application in relation to the land the subject of the application.

47    In accordance with the principles stated and precedents established in Worimi No 2 and Hillig, many non-claimant applications have been granted on the basis of proof of the formal requirements of the NT Act only, in the absence of any detailed evidence about the existence or otherwise of native title (see, for example, Application for the Determination of Native Title made by the Metropolitan Local Aboriginal Land Council [1998] FCA 402; Deniliquin Local Aboriginal Land Council [2001] FCA 609 and Kennedy v Queensland [2002] FCA 747; 190 ALR 707).

48    The evidence here establishes that:

(a)    s 66 notice has been given, has expired and no native title claimants have come forward. This of itself entitles the Court to be satisfied that no other claim group asserts claims to native title and supports the inference that there is no native title in relation to the Land (Worimi No 2 at [46] and [47], as affirmed in Worimi 2010 at [30] and [82]); and

(b)    the NNTT Report shows that there are no overlaps with other claims.

49    Taking into account that the parties to the proceeding unanimously agreed that the Court had power to make the determination as sought by the applicant in the particular circumstances of this case, it is unnecessary to say anything further regarding Reeves J’s observations in Badimia.

Conclusion

50    Having regard to all the matters above, the Court is satisfied that the relevant requirements of the NT Act have been met and an order will be made as sought by the applicant.

Associate:

Dated:    28 August 2017