FEDERAL COURT OF AUSTRALIA

West Wyalong Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1194

ORDERS

THE COURT ORDERS THAT:

1.    Native title does not exist in the land described as the entirety of each of Lots 1233, 1243, and 1257 in Deposited Plan 753135 and located in the Local Government Area of Bland, Parish of Wyalong, County of Gipps, State of 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.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, the West Wyalong Local Aboriginal Land Council (the Land Council), is the Local Aboriginal Land Council under the Aboriginal Land Rights Act 1983 (NSW) (the ALR Act) for the West Wyalong Local Aboriginal Land Council Area (the Land Council area). By a non-claimant application, the Land Council seeks an approved determination and declaration under subs 61(1) of the Native Title Act 1993 (Cth) (the NT Act) that no native title exists over the land the subject of the application (the application area).

2    The application area comprises three parcels of land being Lots 1233, 1243, and 1257 in Deposited Plan 753135 in the Parish of Wyalong, County of Gipps, in the State of New South Wales. The application area falls within the Land Council area and was transferred to the Land Council in fee simple on 25 June 2015 pursuant to a land claim under s 36 of the ALR Act. The Land Council, as the holder of an estate in fee simple over the application area, has standing to bring the application under subs 61(1) of the NT Act because it is the holder of a non-native title interest in relation to the whole of the area in respect of which the determination is sought.

3    The present application is intended to enable the Land Council to deal with the application area, as approaches have been made by third parties to purchase that area. In this regard, the Land Council expressed its desire (amongst other things) to increase its economic base through land claims and targeted acquisition, management and disposal strategies in approving the West Wyalong Local Aboriginal Land Council Community, Land and Business Plan dated June 2016 (the Plan). The Plan was approved by the members of the Land Council on 4 July 2016. However, subject to subs 42(2) of the ALR Act, the Land Council is prevented by operation of subss 36(9) and 42(1) of the ALR Act from selling, exchanging, leasing, disposing of, mortgaging or otherwise dealing with the application area unless it is the subject of an approved determination of native title within the meaning of the NT Act: see Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 (Worimi) at [9] (the Court) (in relation to then s 40AA of the ALR Act); see also the restrictions stated on the certificates of title for the three lots comprising the application area. An “approved determination of native title” is a determination of native title made by this Court under Part 3 of the NT Act for a determination of native title in relation to an area for which there is no approved determination of native title: s 13 of the NT Act.

4    The second respondent, NTSCORP Limited (NTSCORP), has given notice for the purposes of s 86G of the NT Act that it does not oppose orders in, or consistent with, the terms sought by the Land Council. The first respondent, the Attorney-General of New South Wales is a party to the application in his capacity as the Minister responsible for the administration of the NT Act (the State Minister) pursuant to subs 84(4) of the NT Act. The State Minister neither opposes nor consents to the application, but has filed submissions addressing standing, jurisdiction, and the power of the court to make the determination and declaration sought. In the course of those submissions, the State Minister also reviewed and commented upon the evidence provided by the Land Council in support of its application. As the State Minister points out, his views are relevant to determining the application. In particular, it has been held that the State Minister has a role in native title proceedings in the capacity of parens patriae “to look after the interests of the community generally” and, at least in the context of consent determinations, must have given appropriate consideration to the evidence on which the applicant relies and be satisfied of its cogency: see by analogy Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; (2001) 115 FCR 109 (Munn) at [29] (Emmett J); see also below at [18] as to the public interest in native title determinations.

5    For the reasons set out below, I am satisfied that a determination in terms consistent with that proposed by the Land Council is appropriate. In reaching this decision, I have had the considerable benefit of helpful submissions from the Land Council, as well as the State Minister.

2.    EVIDENCE

6    The Land Council relied upon the affidavits of:

(1)    Leeanne Hampton, the Chief Executive Officer (the CEO) of the Land Council, affirmed on 12 May 2017;

(2)    Louise Anne Davis, a board member of the Land Council, affirmed on 12 May 2017;

(3)    Marlene Lynette Collins, a member of the Land Council, affirmed on 12 May 2017; and

(4)    Sarah May Sharp, solicitor, affirmed on 31 May 2017.

7    Ms Hampton has been the CEO of the Land Council since 2007 and a member of the Council since approximately 1995. In her role as CEO, she has ultimate responsibility for improving, protecting, and promoting the interests of Aboriginal persons within the Land Council area. Her duties and responsibilities within the Land Council area include:

(1)    managing the Land Council’s affairs in respect of land claims and land acquisitions;

(2)    protecting the interests of Aboriginal persons in relation to those land dealings;

(3)    protecting artefacts and sites of cultural significance;

(4)    promoting Aboriginal culture and heritage;

(5)    preparing and implementing a community, land and business plan; and

(6)    ensuring compliance with the Land Council’s obligations under the ALR Act.

8    Ms Hampton has also lived in West Wyalong and Wyalong (a town adjacent to West Wyalong) for 42 years. It is her belief, based on information from her parents, that her ancestors were some of the first identified Aboriginal people to settle within the West Wyalong area. She is familiar with the application area and deposes that it is vacant, save for an unauthorised structure. She believes that the application area is not culturally significant in, or important under, the traditional laws and customs of the Wiradjuri People. This belief is based upon stories told to her by family members, research which she undertook in around June 2014 at the Office of the Aboriginal and Torres Strait Islander Studies in Canberra in respect of the application area and other areas within the West Wyalong and Wyalong areas, and her knowledge as a member of the Land Council. She also conducted a “walk over” on the application area to progress the land claim in around 2012 or 2013. In her view, this confirmed that the application area had been heavily impacted from previous uses and there were no cultural heritage materials or sites of cultural significance on it.

9    Ms Collins has lived in West Wyalong and Wyalong since around 1964 and has been a member of the Land Council since 1984. Ms Collins is classed as an elder within the Aboriginal Community of West Wyalong, which is in the Wiradjuri tribal area. As an elder with this community, she is responsible for ensuring that cultural heritage is maintained and for upholding and teaching cultural practices. Her children were born, raised, and have lived, in West Wyalong, with her daughter still residing there. She believes based on information received from her parents that her parents, grandparents and extended family all belonged to the Corowa Tank community before being moved to the Lake Cargelligo and Euabalong community, which form part of the Wiradjuri Ngiyampaa Nation.

10    Ms Collins is also familiar with the application area. Based upon her attendance at Board and member meetings of the Land Council and her discussions with her family and other members of the Land Council, she is supportive of the application and believes that the members are supportive of it as well. She also believes that there had not been, and was unlikely to be, any native title claim over the application area.

11    Finally, Ms Davis has been a member of the Land Council since 3 July 2007 and has lived in West Wyalong for the past 10 years, as have other members of her family. She was appointed to the Land Council Board on 23 December 2015. Her parents and grandparents belonged to the Aboriginal Communities of Euabalong, Peak Hill, Cowra, Wellington and Condobolin, which all form part of the Wiradjuri tribal area. She identifies with the Aboriginal Communities of West Wyalong and Condobolin, and is considered an elder in those communities. In her capacity as an elder of the Aboriginal Communities of West Wyalong, Ms Davis is responsible for speaking for the protection, conservation and management of the Land Council’s land, ensuring that cultural heritage is maintained, and upholding and teaching cultural practices.

12    Ms Collins was familiar with the application area because she visited it in August 2015 and attends cultural heritage site work on behalf of the West Wyalong Aboriginal Community within the Council boundary. She supports the non-claimant application for the Land Council’s economic development and, based upon her attendance at Board and member meetings at which the application was discussed, she believes that the Land Council members are supportive of the non-claimant application and that there is unlikely to be any opposition to it. She also believes that there had not been, and is unlikely to be, any native title claim over the application area.

3.    CONSIDERATION

3.1    Prescribed conditions for making a determination that no native title exists

13    The conditions for making an approved determination that no native title exists in the application area are that:

(1)    the application has been advertised in accordance with s 66 of the NT Act;

(2)    the application area is not covered by an application for a determination that native title does exist;

(3)    the prescribed notification period under subs 66(10)(c) has come to an end and there are no persons who oppose the application; and

(4)    an order in, or consistent with, the terms sought by the applicant is within the Court’s power.

See e.g. Mudgee Local Aboriginal Land Council v Attorney-General of NSW [2013] FCA 668 (Mudgee) at [8] (Jagot J).

14    The affidavit evidence of Ms Sharp affirmed on 31 May 2017 establishes that on 25 October 2016, the Registrar notified the first respondent and the second respondent of the application (as required by subs 66(2) and (2A) of the NT Act). Further, on 23 November 2016, the Registrar notified the persons and bodies required to be notified under subs 66(3). The Registrar also arranged for the publication of a notice in the Koori Mail and Condoblin Argus on 16 November 2016 in accordance with subss 66(3)(d) and (10) of the NT Act and reg 6(1) of the Native Title (Notices) Determination 2011 (No 1). The evidence therefore establishes that the first of the conditions set out above has been satisfied.

15    On 3 March 2017, the delegate of the Registrar advised that, following the end of the notification period on 28 February 2017, there were no other native title determination applications (including any claimant applications within the meaning of s 253 of the NT Act) and no relevant entries on either the National Native Title Register or the Register of National Native Title Claims in respect of the application area. Furthermore, the notice period came to an end on 28 February 2017 and there are no persons who oppose the application (as defined by subs 86G(2) of the NT Act). As such, the second and third conditions are met.

16    This Court also has power to make a determination that native title does not exist: see CG v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466. The fourth condition is therefore also met.

17    In addition, I am satisfied that the operation and effect of the provisions of the ALR Act to which I earlier referred make it clear that the issue sought to be raised by this application is not a moot one and must be determined by this Court: see also by analogy e.g. Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales [2012] FCA 792 at [25] (Perram J). As Jagot J observed in Jerringa Local Aboriginal Land Council v Attorney-General of the State of NSW [2013] FCA 562 at [2], the interactions between the ALR Act and the NT Act mean that land councils have no option other than to seek an approved determination of native title in the Federal Court.

3.2    Has the Land Council established that no native title exists?

18    The remaining question is, therefore, whether I am satisfied on the evidence that the negative proposition that native title does not exist has been established on the balance of probabilities. In this regard, the Court must bear in mind that a determination that no native title exists has force and effect as against the whole world and, by virtue of subs 61(1) of the NT Act, may be varied relevantly only upon an application by the Commonwealth or relevant State Minister or the Native Title Registrar upon the limited grounds prescribed by subs 13(5) of the NT Act. Thus as Collier J explained in Anderson on behalf of the Wulli Wulli People v State of Queensland (No 3) [2015] FCA 821 at [153] in the context of a consent determination:

•    The Court must exercise caution where any declaratory order involving property rights is sought.

•    Orders that have particular public interest elements require closer examination by the Court than orders which operate solely inter partes. A determination of native title operates against the entire world and has public interest elements.

(See also Munn at [22] (Emmett J)).

19    Native title is defined in subs 233(1) of the NT Act as follows:

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)    the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)    the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)    the rights and interests are recognised by the common law of Australia.

20    As, by way of brief elucidation, Gleeson CJ, Gummow and Hayne JJ held in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 at [75], “…Mabo [No 2] decided that certain rights and interests relating to land, and rooted in traditional law and custom, survived the Crown’s acquisition of sovereignty and radical title in Australia. It was this native title that was then ‘recognised and protected’ in accordance with the Native Title Act …” (emphasis in the original): see also Callinan J at [180].

21    The onus of proving that no native title exists in the application area lies upon the Land Council, as it accepted: Mudgee at [9] (Jagot J); Worimi at [67] and [74] (the Court). In this regard, in upholding the approach of the primary judge in deciding whether the onus of proof had been discharged, the Full Court held in Worimi that:

80. … It is obviously a difficult task to prove a negative proposition: Darling Island Stevedoring & Light Ridge Company Ltd v Jacobsen (1945) 70 CLR 635 at 641-642. It may be established by direct evidence, circumstantial evidence, by inference or by a combination of these things. It must nevertheless be more than a scintilla… It may be determined having regard to the power of the respective parties to adduce relevant evidence, and the extent to which they do so. In this matter, it was mainly a combination of the direct evidence of the Aboriginal witnesses and the inference drawn from the absence of a cogent assertion of native title by a competent application under s 61 of the NT Act, after the notification process, which supported the conclusion of the primary judge.

22    Similarly, in this case the Court has the benefit of the direct and uncontradicted evidence of local indigenous witnesses, including two elders who are charged with protecting and maintaining cultural heritage, and are regarded as knowledgeable about the cultural and traditional uses of the application area. Such evidence is critical: see also e.g. Mudgee at [9] (Jagot J).

23    Ms Hampton who has lived in the area for 42 years and gives evidence of her family’s long ancestral connection to the West Wyalong area, attests to her belief that the land is not culturally significant or important under the traditional laws or customs of the Wiradjuri People – a belief, as I have said, which is based on oral stories told to her by family members, her research, and her long-standing membership of the Land Council. While the absence of sites of significance does not conclusively establish that native title does not exist, it is highly significant that neither Ms Hampton nor the local elders who gave evidence identify themselves or any other person as having any connection to the application area under traditional laws and customs (see by analogy Mudgee at [10] (Jagot J)). Nor is there any evidence of occupation or use of the land under traditional laws and customs. The evidence also establishes that the local Aboriginal Community is aware of the application, has resolved to support it, does not believe that a claimant application is likely to be made in respect of the application area, and does not believe that the application area is of cultural significance. Finally, there is no evidence of any other person asserting native title rights and interests in the land, including in response to publication of the native title determination application by the Registrar.

24    In my view, this evidence is sufficient to establish on the balance of probabilities that there is no native title group holding native title rights and interests in the application area.

4.    SHOULD THE APPLICATION BE DETERMINED WITHOUT A HEARING?

25    Finally, the Court may, if it considers the requirements of s 86G to be met, determine a non-claimant application without a hearing. Section 86G provides that:

(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.

26    As both respondents have advised that they do not oppose the orders in, or consistent with, the terms sought by the applicant, the power to make the order without a hearing is enlivened under this provision. For the reasons which I have already given, I am satisfied both that the Court has power to make an order in, or consistent with, the terms sought by the applicant and that the applicant has established on the balance of probabilities that no native title exists in the application area. In those circumstances, I consider that it is appropriate to make the order sought without holding a hearing.

5.    CONCLUSION

27    For these reasons, it is appropriate to make a determination under subs 61(1) of the NT Act that no native title exists in the application area.

Associate:

Dated:    10 August 2018