FEDERAL COURT OF AUSTRALIA

Darkinjung Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1136

ORDERS

THE COURT DETERMINES AND DECLARES THAT:

1.    Native title does not exist in relation to the areas of land and waters comprised in and known as:

(a)    Lot 1 DP1192889;

(b)    Lot 16 DP1210468;

(c)    Lot 196 DP1064536;

(d)    Lot 197 DP1064536;

(e)    Lot 198 DP1064536;

(f)    Lot l DP1122946;

(g)    Lot 206 DP1117900;

(h)    Lot 207 DP1117900;

(i)    Lot 10 DP1180616;

(j)    Lot 7313 DP1165007;

(k)    Lot 188 DP48813;

(l)    Lot 189 DP48813;

(m)    Lot 190 DP1061009;

(n)    Lot 3 DP1156997; and

(o)    Lots 1001, 1002 and 1003 DP1239890

2.    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

GRIFFITHS J:

1    The applicant seeks a determination under s 61(1) of the Native Title Act 1993 (Cth) (NTA) that native title does not exist in relation to the land and waters in the following 15 areas on the NSW Central Coast:

(a)    Lot 1 DP1192889, also known as 425 Busheils Ridge Road, Bushells Ridge (Area 1);

(b)    Lot 16 DP1210468, also known as Thompson Vale Road, Doyalson (Area 2);

(c)    Lot 196 DP1064536, also known as 53 Mona Road, Charmhaven (Area 3);

(d)    Lot 197 DP1064536, also known as 57 Mona Road, Charmhaven (Area 4);

(e)    Lot 198 DP1064536, also known as 65 Mona Road, Charmhaven (Area 5);

(f)    Lot l DP1122946, also known as 26 Brava Avenue, San Remo (Area 6);

(g)    Lot 206 DP1117900 (Area 7);

(h)    Lot 207 DP1117900 (Area 8). Areas 7 and 8 are also known together as Wyee Road, Doyalson;

(i)    Lot 10 DP1180616, located at Central Coast Highway, West Gosford (Area 9);

(j)    Lot 7313 DP1165007, located at Koala Crescent, West Gosford (Area 10);

(k)    Lot 188 DP48813, also known as 203 Mountain Road, Wallarah (Area 11);

(l)    Lot 189 DP48813, located at Mountain Road, Wallarah (Area 12);

(m)    Lot 190 DP1061009, also known as 201 Mountain Road, Wallarah (Area 13);

(n)    Lot 3 DP1156997, also known as 380 Motorway Link, Wallarah (Area 14); and

(o)    Lots 1001, 1002 and 1003 DP1239890 located at 7-39 Carrack Road, Kincumber (Area 15),

(together, the Land).

2    This determination is sought because of restrictions otherwise imposed on the applicant in dealing with the land by ss 36(9) and 42 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The effect of s 36(9) is that the applicant’s fee simple title to the Land is subject to any native title that existed in relation to it immediately prior to its transfer to the applicant. The effect of s 42 of the ALRA is that the applicant, as an Aboriginal Land Council in NSW, may not “deal with” land subject to native title rights and interests unless that land is subject to an approved determination of native title. The phrase “deal with” is defined in s 40 of the ALRA and includes, amongst other things, the sale, exchange, lease, mortgage, disposal of, or other creation or passing of a legal or equitable interest in the land, the grant of an easement, and even the making of a development application.

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

Summary of background matters

4    The applicant is a Local Aboriginal Land Council established under the ALRA.

5    The Land was transferred to the applicant in fee simple, subject to existing native title rights, under s 36 of the ALRA as follows:

(a)    Area 1 was transferred on 12 May 2014;

(b)    Area 2 was transferred on 24 August 2015;

(c)    Area 3 was transferred on 27 September 2004;

(d)    Area 4 was transferred on 27 September 2004;

(e)    Area 5 was transferred on 27 September 2004;

(f)    Area 6 was transferred on 24 May 2010, following proceedings in the Land and Environment Court of New South Wales;

(g)    Areas 7 and 8 were transferred on 5 October 2007;

(h)    Area 9 was transferred on 1 June 2015;

(i)    Area 10 was transferred on 1 June 2015;

(j)    Area 11 was transferred on 3 February 2000;

(k)    Area 12 was transferred on 3 February 2000;

(l)    Area 13 was transferred on 25 February 2004;

(m)    Area 14 was transferred on 4 January 2011; and

(n)    the three lots comprising Area 15 were transferred on 19 March 2018.

6    The Land is approximately 2.47 square kilometres.

Some procedural matters

7    On 15 June 2017, the applicant filed a non-claimant application for determination that native title does not exist in relation to the Land.

8    Pursuant to s 66 of the NTA, the notification period for the non-claimant application filed on 15 June 2017 was 9 August 2017 to 8 November 2017. The National Native Title Tribunal (NNTT), on behalf of the Native Title Registrar, gave a copy of the application to the Minister under s 66(2) and gave notice to NTSCORP Limited (NTSCORP) under s 66(2A) of the NTA. Public notice was given in the Central Coast Advocate on 26 July 2017 and the Koori Mail on 26 July 2017 (s 66(3)(d) of the NTA). No native title claimant applications were filed during or subsequent to the notification period, nor were any notices of intention to become a party to an application filed during the notification period.

9    On 4 December 2017, an order was made that NTSCORP, being the State native title representative body, be joined as a respondent in the proceeding.

10    The applicant filed two affidavits. The first is an affidavit of its solicitor, Mr James Konrad Walkley, affirmed on 22 May 2018 (Walkley Affidavit). The second is an affidavit of Mr Anthony James Oliver, a registered land surveyor, affirmed on 22 May 2018 (Oliver Affidavit).

11    Both the Attorney-General of New South Wales (Attorney-General) and NTSCORP filed notices under s 86G of the NTA indicating they did not oppose orders in, or consistent with, the terms sought by the applicant. All parties consented to the application being determined on the papers without a hearing.

Overlap with other native title applications

12    An “overlap analysis report” produced by the NNTT’s searches of the National Native Title Register on 9 January 2018 indicated that there were two overlaps between the application and other native title applications or determinations:

(a)    between Area 1 and native title determination NND2002/003; and

(b)    between Area 2 and native title determination application NN2017/012.

13    As to the first, if the present application overlapped with native title determination NN2002/003 it would contravene the prohibition in s 68 of the NTA. This apparent overlap is discussed below.

14    The second overlap is between Area 2 and NN2017/012, which is another pending non-claimant application filed by the applicant on 24 November 2017 (Federal Court file number NSD2081/2017) (Darkinjung #4). Relevantly, s 67(1) of the NTA provides:

67 Overlapping native title determination applications

(1)    If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

15    Mr Walkley deposed in his affidavit that the second overlap was an inadvertent error and that he was instructed to seek leave to amend Darkinjung #4 to remove the overlapping area from that application (Walkley Affidavit, [20]-[21]). On 21 June 2018, the Court made orders in Darkinjung #4 which granted the applicant leave to file an amended application in that proceeding. On 27 June 2018, the applicant filed an amended application in Darkinjung #4 with “Lot 16 in Deposited Plan 1210468 at Doyalson in the Parish of Munmorah, County of Northumberland” (i.e. Area 2 in this application) deleted. Accordingly, there is no longer any overlap between Area 2 in this application and NN2017/012.

Key statutory provisions

16    Section 13(1) of the NTA permits an application to be made to the Court for an approved determination of native title in relation to an area for which there is no other approved determination of native title (see also NTA, s 68). If two or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding (NTA, s 67(1)).

17    An approved determination of native title has the meaning given by ss 13(3), (4) and (7) of the NTA (see s 253 of the NTA). 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) …

18    The determination for native title is a determination of whether or not native title (as defined in NTA, s 223) exists in relation to a particular area and, if it does exist, a determination of the matters set out in paragraphs (a) to (e) of s 225 of the NTA (see also, NTA s 94A). As this is an application for an order that native title does not exist, it is not necessary for the order to address the matters in paragraphs (a) to (e) of s 225 of the NTA: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466 (Badimia People) at [57] per North, Mansfield, Jagot and Mortimer JJ.

19    The applicant applies for a determination under s 61(1) of the NTA on the basis that it is 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”.

20    If an application is made under s 61, then the Native Title Registrar must, as soon as reasonably practicable, give the application to the State Minister and various representative bodies (NTA, s 66(2)-(2A)) and also notify the public and various other people listed in s 66(3) of the application. The notice must (amongst other things) state that a person who wants to be a party to the application must notify the Court in writing within 3 months starting on the notification day or, after that period, obtain the leave of the Court to become a party (NTA, s 66(10)(c)).

21    Section 86G of the NTA empowers the Court to make an order in respect of an application under s 61 of the NTA without holding a hearing in particular circumstances:

Federal Court may make order

(1)     If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66:

(a)     the application is unopposed; and

(b)    the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court;

the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing.

Note: If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).

Meaning of unopposed

(2)     For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.

22    There are two “jurisdictional preconditions” to a Court making an order under s 86G(1) of the NTA: (1) the application is “unopposed”; and (2) the order sought (or made) is “within the power of the Court”: Kennedy v State of Queensland [2002] FCA 747; 190 ALR 707 (Kennedy) at [21] per Sackville JA. If those jurisdictional preconditions to s 86G(1) are satisfied, then the Court “may” – that is, has a discretion to – make such an order without a hearing “if it appears appropriate to do so”: Kennedy at [28]-[30]; see also Gandangara Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 646 at [8]-[9] per Griffiths J.

23    “Previous exclusive possession act” is defined in s 23B of the NTA:

23B Previous exclusive possession act

(1)     This section defines previous exclusive possession act.

Grant of freehold estates or certain leases etc. on or before 23.12.1996

(2)     An act is a previous exclusive possession act if:

(a)     it is valid (including because of Division 2 or 2A of Part 2); and

Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

(b)     it took place on or before 23 December 1996; and

(c)     it consists of the grant or vesting of any of the following:

(i)    a Scheduled interest (see section 249C)

…

The applicant’s submissions summarised

24    The applicant submitted that the Court has power to make the requested determination because:

(a)    this application is a native title determination application made under s 61 of the NTA. The applicant is the registered proprietor of the Land. Accordingly, the applicant is a person who holds a non-native title interest in relation to the whole of those lands;

(b)    the Court has jurisdiction to hear and determine the application under s 81 of the NTA;

(c)    the notification period specified under s 66 of the NTA expired on 8 November 2017 and the Court may make a determination of native title pursuant to s 86G of the NTA after the notification period has expired; and

(d)    the orders proposed by the applicant includes all of the details required by s 225 of the NTA.

25    In respect of the overlap identified in the NNTT report between the present application and NND2002/003 (the 2002 determination), the applicant stated that the 2002 determination is one of the 5 previous determinations of native title made in response to applications made by Darkinjung between 1999 and 2004. The terms of the 2002 determination are, relevantly:

Native Title does not exist in relation to the land described as:

(a)    Lot 108 in Deposited Plan 755245

(b)    Lot 111 In Deposited Plan 755245

(c)    Lot 191 in Deposited Plan 1032847

(d)    Lot 195 in Deposited Plan 1032847.

26    The applicant submitted that as described in the determination, no part of the 2002 determination is included in the application area in these proceedings; however, one part of the 2002 determination area (Lot 195 DP1032847) abuts one part of the application area in these proceedings (Area 1, being Lot 1 DP1192889).

27    The applicant stated that it sought to clarify the nature and extent of the overlap, and received an email dated 10 May 2018 from the NNTT who advised that “the overlap here is technical in nature and likely the result of the land parcels having been spatially upgraded” (Walkley Affidavit, [14(a)]). The applicant stated it understood this to mean that the spatially upgraded data for the boundaries of the lots, and the spatial data relating to the boundaries of the 2002 determination, are slightly different in their alignments.

28    The applicant relied on Mr Oliver’s evidence (at [18] of his affidavit):

It should also be recognised that GIS mapping typically incorporates an error interval. This is inherent to any batched data processing. The resultant data does provide sufficient reliability for broad land management strategies. Where more site specific issues arise, data may be interrogated to provide validation to an acceptable level of reliability using the cross-referencing and searching options described in paragraphs 12-16 above and 19-27 below.

29    The applicant submitted that, consistently with the process described by Mr Oliver for interrogating spatial information, it can be safely concluded that no part of the application area in the present proceedings is subject to an approved determination of native title in the 2002 determination, by reference to:

(a)    Annexure JKW13 to the Walkley Affidavit, being an extract from the National Native Title Register in relation to the 2002 determination, which identifies the relevant part of the 2002 determination area as “Lot 195 in Deposited Plan 1032847”;

(b)    Annexure JKW19 to the Walkley Affidavit, being a map prepared using the State of New South Wales’ Sixmaps online geospatial data service which shows the boundary between Lot 1 DP1192889 (Area 1 in this application) and the eastern boundary of Lot 195 DP 1032847. The lots abut but do not overlap; and

(c)    Annexure JKW20 to the Walkley Affidavit, which includes Deposited Plan 1192889. Mr Walkley deposed that no overlap between Lot 195 DP1032847 and Lot 1 DP1192889 is evident in Annexure JKW20 (Walkley Affidavit, [19]).

30    For the above reasons, the applicant submitted that s 68 of the NTA does not apply so as to prevent the Court from determining the present application.

Appropriateness of the orders sought by the applicant

31    The Court must be satisfied on the balance of probabilities that native title does not exist in relation to each of parcels comprising the Land, either:

(a)    because native title is not claimed by, or cannot be proved by, a native title claimant; or

(b)    because native title has been extinguished by one or more prior acts of the Crown.

32    The applicant submitted that the prescribed procedures referred to in [7] ff above have not elicited any claimant applications in relation to any of parcels comprising the Land within the notification period or subsequently; nor has any party sought to be joined to the application as a respondent to assert that native title exists in respect of any part of the Land.

33    The applicant submitted that there are no previous approved determinations of native title in relation to any part of the Land and that, in these circumstances, the Court may be satisfied that native title does not exist in relation to any part of the Land because native title is not claimed by, or cannot be proven by, a native title claimant, citing Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929 (Worimi) at [46]; Commonwealth of Australia v Clifton [2007] FCAFC 190 (Clifton) and Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 (Deerubbin) at [51] and [53].

34    In addition, the applicant submitted that the formal requirements of s 24FC of the NTA have been satisfied and consequently the Land is subject to section 24FA protection.

Extinguishment of native title

35    The applicant submitted that although it is not necessary to consider evidence of extinguishment given the matters in [31]-[34] above, there is also evidence to establish that native title in Areas 2-14 inclusive has been extinguished by previous exclusive possession acts attributable to the State of New South Wales.

36    The applicant relied on Mr Oliver’s evidence concerning the results of his tenure review of each of the 15 parcels comprising the Land. Mr Oliver’s evidence and the applicant’s submissions may be summarised as follows.

(a)    Area 1: As Mr Oliver’s tenure review of Area 1 did not identify any relevant grants for Area 1, the applicant does not assert that any previous exclusive possession acts had affected Area 1, or that native title has been wholly extinguished in relation to Area 1.

(b)    Areas 2, 3 and 4: Crown Lease 1915-2, Crown Lease 1918-4 and Special Lease 1938-4 were granted under the Crown Lands Consolidation Act 1913 (NSW) (CLCA) and affected the whole of Areas 2, 3, and 4. The applicant submitted that since neither Crown Leases 1915-2 nor 1918-4 included a special condition that “does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose”, both Crown Leases are “Scheduled interests” pursuant to Sch 1, pt 1, cl 3(10) of the NTA. In addition, the 3 areas were within Special Lease 1938-4 for Grazing Agriculture and Dairying, which the applicant submitted is also a “Scheduled interest” as the purposes of “agriculture (or any similar purpose) and grazing combined” and “dairying” are included in Sch 1, Part 1, cl 3(8) of the NTA. Therefore, Crown Lease 1915-2, Crown Lease 1918-4 and the Special Lease 1938-4 are each “a previous exclusive possession act” for the purposes of s 23B(2)(c)(i) of the NTA and, under s 20 of the Native Title (New South Wales) Act 1994 (NSW), they extinguished any native title in relation to Areas 2, 3 and 4 when they were granted in 25 August 1915, 19 July 1918 and 18 November 1938 respectively.

(c)    Area 5: Special Lease 1941-61 for Grazing and Agriculture was granted under the CLCA and covered the whole of Area 5. As the purpose of “agriculture (or any similar purpose) and grazing combined” is included in the list at Sch 1, Pt 1, cl 3(8) of the NTA, the applicant submitted that Special Lease 1941-61is a “Scheduled interest” with the same extinguishing effect as described above.

(d)    Area 6: the whole of Area 6 was subject to homestead farm leases granted under the CLCA (as described in the tenure card of Homestead Farm No 13-10) and Special Lease 1940-13 for Grazing and Agriculture. A “homestead farm” is a Scheduled interest pursuant to Sch 1, Part 1, cl 3(11) of the NTA, and Special Lease 1940-13 is a Scheduled interest under Sch 1, Pt 1, cl 3(8) under the purpose “agriculture (or any similar purpose) and grazing combined”. The applicant submitted that consequently, the homestead farm leases and Special Lease 1940-13 had the same extinguishing effect as described above. In addition, a part of Area 6 was also affected by Special Lease 1956-9 for the erection of buildings (Hotel Buildings), which is a Scheduled interest under Sch 1, Pt 1, cl 3(8) under the purpose “erection of building”, and has the same extinguishing effect as described above in respect of that part of Area 6 it affects.

(e)    Areas 7 and 8: Special Lease 1960-9 in Perpetuity granted under the CLCA on 12 January 1962 for Business Purposes (riding school) affects part of Areas 7 and 8, and is a “Scheduled interest” because its purpose of “riding school” is analogous to the purpose “equestrian grounds” which appears in the list at Sch 1, Pt 1, cl 3(8), so the applicant submitted. The applicant further submitted that Special Lease 1928-4 granted on 27 September 1929 for Residence and Business Purposes (Refreshment Room), which affects part of Area 8, is a “Scheduled interest” because the purposes “residence” and “refreshment room” both appear in the list at Sch 1, Pt 1, cl 3(8). The applicant submitted both Special Leases have the same extinguishing effect as described above in respect of the part of Areas 7 and 8 they affect.

(f)    Areas 9 and 10: Special Lease 1911-12 affected the whole of Areas 9 and 10 and was granted under the CLCA for grazing, pig and poultry farming. The applicant submitted that as the purposes of “pig and poultry farm”, “piggery” and “poultry farm” each appear in the list at Sch 1, Pt 1, cl 3(8), and Special Lease 1911-12 was “primarily” able to be used for the purposes of “pig and poultry farm”, the Special Lease was therefore a “Scheduled interest” with the same extinguishing effect as described above. In addition, the whole of Area 9 was also affected by Special Lease 1945-8 granted under the CLCA on 27 May 1949 for Business Purposes (Cultivation of Natural Flora). The applicant submitted that as the purposes of “cultivation”, “cultivation of eucalyptus”, “nursery garden”, “orchard” and “tree farming” each appear in the list at Sch 1, Pt 1, cl 3(8), and that these purposes, or some of them, are directly analogous to “cultivation of natural flora”, the Special Lease is a “Scheduled interest”, with the same extinguishing effect as described above.

(g)    Areas 11 and 12: the whole of Areas 11 and 12 were affected by Special Lease 1962-69 for Residence, Agriculture and Grazing granted under the CLCA on 20 September 1963. The applicant submitted that since the purposes “agriculture (or any similar purpose) and grazing combined” and “residence” appear in the list at Sch 1, Pt 1, cl 3(8), the Special Lease is a “Scheduled interest” with the same extinguishing effect as described above.

(h)    Area 13: the whole of Area 13 was affected by two Special Leases for Grazing and Agriculture: Special Lease 1955-39 and Special Lease 1960-24, both granted under the CLCA on 1 November 1957 and August 1962 respectively. The applicant submitted that since the purpose “agriculture (or any similar purpose) and grazing combined” appears in the list at Sch 1, Pt 1, cl 3(8), they are both “Scheduled interests” with the same extinguishing effect as described above.

(i)    Area 14: the whole of Area 14 was subject to Crown Lease 1921-9, which was confirmed on 6 September 1921 and forfeited under the CLCA on 26 May 1922. The applicant submitted that the Crown Lease is a “Scheduled interest” on the basis that Mr Oliver did not locate any information which confirmed that the lease satisfied any of the exclusionary conditions in Sch 1, Pt 1, cl 3(10), namely, that the lease both “permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes” and “does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose”. It therefore had the same extinguishing effect as described above, so it was submitted.

(j)    Area 15: Special Lease 1908-1 for Vegetable Garden and Grazing was granted over the whole of Area 15 on 1 October 1908 under the CLCA. Despite its best efforts, the applicant could not determine what provision Special Lease 1908-1 was granted under and whether it was a “secondary interest” within the principles expounded in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) [2012] NSWCA 358. The applicant submitted that if the Special Lease was a secondary interest which was validated under the Crown Lands Amendment (Multiple Land Use) Act 2013 (NSW), then it cannot have any extinguishing effect.

37    However, the applicant submitted that it is not necessary for the Court or parties to resolve this question in these circumstances where the Court may be satisfied that native title does not exist in relation to any part of the Land as it is not claimed by a native title claimant, citing Worimi.

38    The applicant submitted that, if necessary, in light of the above, there is sufficient evidence for the Court to be satisfied on the balance of probabilities that any native title rights and interests over Areas 2-14 have been extinguished by one or more prior acts of the Crown.

The Attorney-General’s submissions summarised

Disproving native title

39    The Attorney-General submitted that the applicant bears the onus of proof to establish, on the balance of probabilities, that no native title exists in relation to the Land: see e.g. Deerubbin at [49].

40    It can establish that native title does not exist in one of two ways: (1) it can prove that no native title exists in the claimed land; or (2) it can prove that any native title which may have existed in the land has been extinguished: Deerubbin at [48].

41    Where there is an unopposed non-claimant application in which orders are sought for a declaration that native title does not exist and where:

(a)    notice has been given to the relevant representative body under s 66 of the NTA;

(b)    public notice has been given under s 66 of the NTA and no response has been received following that notice; and

(c)    searches by the NNTT establish that there is:

(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,

then the Court is normally “entitled to be satisfied that no other claim group or groups assert a claim to hold native title to the land” and that finding “supports an inference of an absence of native title”: Worimi at [46], citing Clifton at [59] per the Full Court.

42    Accordingly, although sometimes expressing reservations about doing so (see e.g. Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 at [10] per Perram J, noting, however, that his Honour ultimately granted the application), the Court has determined that native title does not exist in a number of cases on this basis: see, amongst others, Deerubbin; Griffith Local Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1452; Forster Local Aboriginal Land Council v New South Wales Native Title Services Limited [2006] FCA 1455; Cruse v New South Wales Native Title Services Ltd [2006] FCA 1124; Hillig as Administrator of Worimi Local Aboriginal Land Council v NSW Native Title Services Ltd [2006] FCA 1184.

Power to make orders in the present application

43    Having regard to the applicant’s evidence and the procedural matters outline above, and following the approach in Worimi, the Attorney-General submitted that it was open for the Court to be satisfied that there is no native title in the claimed Land, and accordingly to make the declaration sought by the applicant.

44    The Attorney-General submitted that whether the Court is so satisfied is ultimately a question for the Court. The plurality in Badimia People observed at [66] (per North, Mansfield, Jagot and Mortimer JJ):

Given that a negative determination is, as we have pointed out above, a determination in rem, it is important that the Court carefully consider such matters before it can be satisfied, on the balance of probabilities, that no native title right or interests exist in relation to a particular area.

45    The Attorney-General contended that it was unnecessary for the Court to consider the issue of extinguishment if the Court was satisfied that there is an unopposed non-claimant application.

NTSCORP’s summarised

46    NTSCORP stated that as this non-claimant application has no Aboriginal respondents, NTSCORP is not in a position to oppose the application.

47    NTSCORP submitted that it is not logical for the Court to determine a non-claimant application when an act in land “subject to section 24FA protection” extinguishes native title. NTSCORP submitted that the dissenting opinion of Reeves J expressed at [88] to [113] in Badimia People is correct; namely, contrary to [39] of the plurality’s judgment, a non-claimant application is not an application which “necessarily claims” that native title does not exist, rather, the purpose of non-claimant applications is to secure s 24FA protection under Subdivision F, of Division 3, of Part 2 of the NTA. In general, it is not necessary to, and the Court should not, determine non-claimant applications once land is subject to s 24FA protection, so it was submitted. However, the ALRA is anomalous in requiring determinations of native title, either positive or negative, before Aboriginal Land Councils can “deal with land”, as that phrase is defined in the ALRA. In that respect, the Court has the power to determine non-claimant applications made by Aboriginal Land Councils for this purpose.

Disposition of the application

48    Having regard to the applicant’s evidence and its submissions, the Court is satisfied that native title does not exist in the Land. The Court is dealing with an unopposed non-claimant application. It is satisfied on the evidence before it that the procedural matters set out in [41] have been established. The Court is also satisfied that the applicant has made an adequate response to the results of the searches conducted by the NNTT and that there is neither a previous approved determination or a current application of native title in the Land. The application is unopposed and the Court is entitled to proceed with its determination without a hearing under s 86G of the NTA, a course which was not opposed by any of the parties. The Court is satisfied that there is no evidence that there is native title in the Land and it also infers from the evidence before it concerning the absence of any responses to the notices described in [41] above that there are no persons who presently believe that there is native title in the Land.

49    In these circumstances, it is unnecessary to determine the alternative basis relied upon by the applicant, namely that any native title has been extinguished. Accordingly, it is also unnecessary to address and determine NTSCORP’s submissions relating to Badimia People. In any event, it goes without saying that the dissenting of opinion of Reeves J in that case is not binding, but that of the plurality is.

Conclusion

50    As noted above, neither respondent opposes orders being made in, or consistent with, the terms sought by the applicant. The Court is satisfied that the orders sought are within its powers and that it is appropriate to make the determination in the terms sought by the applicant.

Associate:

Dated:    3 August 2018