FEDERAL COURT OF AUSTRALIA

Worimi Local Aboriginal Land Council v Attorney General of New South Wales [2018] FCA 1329

ORDERS

THE COURT ORDERS THAT:

1.    Native title does not exist in relation to the area of land and waters comprised in Lot 264 on DP48801 at Clarence Town in New South Wales.

2.    There is 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

ROBERTSON J:

Introduction

1    This non-claimant application by the Worimi Local Aboriginal Land Council (the applicant) is made under s 61(1) of the Native Title Act 1993 (Cth). It relates to the area of land and waters comprised in and known as Lot 264 on DP48801, at Clarence Town in New South Wales (Lot 264). The application was filed on 26 July 2016.

2    Lot 264 was previously used as a quarry by the former Walarobba Shire Council and then as a landfill site by the Dungog Shire Council. As a result of these previous uses, the applicant was concerned that contaminants from Lot 264 may be carried by stormwater into a neighbour’s dam or may be leaching into groundwater. The Environmental Protection Agency (EPA) had become involved. Dungog Shire Council had resolved to seek to purchase the land from the applicant to enable it to carry out expensive remediation works. The applicant was concerned about the potential liability that the land posed and wished to be able to sell the land to the Council.

3    Lot 264 was transferred in about 1999 to the applicant as the result of an Aboriginal land claim made pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW).

4    Under s 36(9) of the Aboriginal Land Rights Act, the applicant holds an estate in fee simple, subject to any native title rights and interests which existed in relation to the land immediately prior to its transfer to the applicant. Section 42 of the Aboriginal Land Rights Act prohibits the applicant from “dealing” with such land “unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).”

5    In order to allow the sale to the Council to take place, the determination that the applicant sought was a determination that there is no native title. Specifically, the terms of the order sought by the applicant were as follows:

Pursuant to s 86G of the Native Title Act 1993 (Cth), the Court determines and orders:

1.    Native title does not exist in relation to the area of land and waters comprised in Lot 264 on DP48801 at Clarence Town in New South Wales.

2.    There is no order as to costs.

6    The first respondent, the Attorney General of New South Wales in his capacity as State Minister under the Native Title Act, filed a notice under s 86G of the Native Title Act on 29 March 2017. The Attorney General said that, at that stage, he could neither consent to, nor oppose, orders in the terms sought by the applicant, until such time as the applicant’s evidence was completed. In his written submissions, the Attorney General submitted that he did not oppose the application.

7    The third respondent, NTSCORP Ltd, filed a notice under s 86G on 7 June 2017, notifying the Court that it did not oppose orders in, or consistent with, the terms sought by the applicant.

8    The second respondent, Ms Carol Bissett, has not consented to the orders sought by the applicant. She has not filed a notice under s 86G. That is sufficient to mean that the application is not “unopposed” for the purposes of s 86G.

9    This does not appear to be an oversight or clerical omission. I also understand from Ms Bissett’s most recent written submission, filed on 15 August 2018, that she does not consent to the application. She writes: “Why is it necessary to extinguish any land in Worimi Nation or else where to sell land. No Real estate agents use this legislation. It seems only mining companies etc do this.” By ‘legislation’, Ms Bissett seems to be referring to the Aboriginal Land Rights Act. In an earlier written submission dated 19 June 2018, Ms Bissett asked (as written):

When was it accepted by the Majority of Aboriginal people for an Indigenous Organisation to have the control and power over all Indigenous Issues. Why is it That under, the Native Title Act, everything has to be proved to gain access to ancestral lands, while the Land Rights Act can accumulate free land, and sell those lands off, without it seems, any benefit to indigenous people, with housing and employment etc. It seems that Aboriginal Community’s unity has come to an end. Without true unity and community consultation with the Majority of Indigenous people, their is nothing to look forward to in the future.

The evidence

10    The applicant in its first written submissions dated 4 May 2017 relied on:

(a)    the affidavit of Andrew William Smith affirmed 4 May 2017;

(b)    the affidavit of Jason Augustus Behrendt affirmed 4 May 2017; and

(c)    the affidavit of Dominic Patrick William Beckett affirmed 4 May 2017.

11    On 8 June 2018, the applicant filed three further affidavits on which it relied in its second set of submissions dated 8 June 2018, being:

(a)    a further affidavit of Andrew William Smith affirmed on 4 May 2018. Mr Smith’s second affidavit provided evidence of a meeting of the members of the applicant held on 27 February 2018, at which Lot 264 was considered;

(b)    an affidavit of Lionel George Ridgeway affirmed on 28 May 2018. Mr Ridgeway is a Worimi elder and is the brother of Ms Bissett. Mr Ridgeway also lived in Clarence Town nearby Lot 264 for 19 years, from around 1991 or 1992; and

(c)    an affidavit of James Konrad Walkley affirmed on 24 May 2018. This affidavit annexed maps of the two discontinued Maaiangal native title claims.

12    Mr Behrendt deposed to having inspected on behalf of the applicant a number of files at the offices of the Department of Primary Industries, Crown Lands, at Level 7, 323 Castlereagh Street, Haymarket. The files he inspected included:

(a)    File H2410 - Land Claim No 5645;

(b)    File MD94H179T - Vol 1 - Permits Per. Occ. 56/3 Dungog - Clarence Town;

(c)    File MD94R40T - Vol 1 - Reserves Uffington - Rubbish Depot Clarence Town; and

(d)    File MD97R31 - Vol No 1 - Reserves PH Uffington - R58366- Clarence Town Quarry.

13    He inspected material in relation to quarrying activities previously conducted on Lot 264. This material was largely contained on File MD94H179T. It concerned a permissive occupancy numbered PO 56-3 for Quarrying, which had been issued to Wallarobba Shire Council.

14    The material he inspected disclosed that Permissive Occupancy 56-3 for Quarrying had originally been issued over nearby Lot 243 which was the subject of Reserve 58366 of Quarrying notified on 6 November 1925, but that it had been amended so that included adjoining land including Lot 264. Lot 264 was on the opposite side of the road known as Clarence Town Road to Lot 243.

15    Mr Behrendt’s note made soon after inspecting the documents was that it was clear that quarrying activities occurred on the land that included Lot 264. That quarrying appeared to have been gravel extraction associated with roadworks. That note also recorded that there were photographs on the Department’s file which showed that some of the quarrying had been extensive. He did not make detailed specific observations about the individual photographs and the details of what they showed because he anticipated being able to inspect the files further and obtain copies of the photographs when they were needed. He recalled that they were colour photographs that had faded. He recalled they showed, amongst other things, large piles of light coloured material.

16    The effect of the affidavit of Mr Dominic Beckett is that those files can no longer be located by the relevant Department.

17    As indicated above, Mr Walkley’s affidavit attached claim maps for NSD6009/2000 (NC2000/002) Maaiangal Clan and NSD6022/2001 (NC2001/009) Maaiangal Ngura showing the application areas of two discontinued nearby claimant applications.

18    Mr Ridgeway deposed that he lived in Clarence Town for 19 years, from around 1991 or 1992, close to the old dump site, maybe 500 or 600 metres away on the same road. He deposed:

16.    In my time living at Clarence Town, my family was the only Aboriginal family there. There may have been other people living there with Aboriginal heritage who did not identify themselves as Aboriginal, but I do not know for sure. So far as I knew we were the only Aboriginal family in town. I started visiting schools and providing cultural education in the Dungog and Clarence Town area. My view was that the kids would educate their parents, too, so I was happy to put the time into it. It was hard to begin with, but I'm stubborn. I wanted to change people's ways.

…

22.    The old dump site at Clarence Town is not a culturally important place like these other places I've just talked about. It's not a place to camp, or to gather food from. I wouldn't do that or recommend to anyone else that they do that, because of what's been done to it over the years. It's set back from the river so you can't fish from there.

19    Mr Smith is the Chief Executive Officer of the applicant. He annexed to his first affidavit documents showing that a freehold title to Lot 264 was transferred to the applicant in or about 1999 and the applicant is now the registered proprietor of Lot 264. He annexed a true copy of a Land and Property Information title search certificate in relation to Lot 264. He deposed that Lot 264 is an area of approximately 2.7 hectares located on Clarence Town Road, Clarence Town. He annexed to his affidavit a map showing the location of Lot 264 obtained using the (Department of Finance and Services Spatial Information eXchange) SIX Maps online mapping tool for New South Wales developed by Land and Property Information NSW (accessible at https://maps.six.nsw.gov.au/).

20    He annexed two aerial images also obtained using SIX Maps, but this time using a satellite image as the base layer. The first of the two pages showed Lot 264 in context. The second was a more detailed view of Lot 264.

21    He annexed a bundle of some photographs of Lot 264 which he took himself on 1 May 2017. The photographs in the bundle were as follows.

(a)    From within the site showing the lower swale (Images 4 & 5) and vegetated knolls (Images 6, 7 & 8).

(b)    The front fence and signage informing residents that the waste management depot was closed and the dumping of rubbish was illegal (Images 13, 14, 15, 16, 17, 18). He noted that a “Private Property” sign had been removed from the padlocked gate and it appeared that the gate had been rammed.

22    Mr Smith deposed that although Lot 264 had become increasingly overgrown since the applicant acquired the land, there had not been any other significant changes to the land in that time. Aside from vegetation, the photographs he annexed were representative of the appearance of Lot 264 when the applicant took ownership and possession of it.

23    Mr Smith deposed that Lot 264 was previously used as a landfill site by Dungog Shire Council. As a result of discussions with Dungog Shire Council staff and the records they had provided, he believed the use as landfill site ended in 1993. He annexed a bundle of documents provided by staff of Dungog Shire Council, being:

(a)    a letter dated 7 November 1988 from the Shire Clerk to the Regional Manager, Lands Office Taree;

(b)    a letter dated 15 February 1989 from the Lands Office Taree to the Shire Clerk;

(c)    a letter dated 10 October 1997 from the Department of Land and Water Conservation to the General Manager, Dungog Shire Council;

(d)    a letter dated 15 October 1997 from the General Manager, Dungog Shire Council to the Department of Land and Water Conservation, confirming the closure of the site on 23 November 1993.

24    As a result of this previous use for landfill, Mr Smith deposed that there had been concerns expressed by a neighbour about contaminants from Lot 264 being washed by stormwater into the neighbour’s dam and also leaching into groundwater.

25    Mr Smith deposed that he was aware that the EPA had been made aware of these concerns and that it had been liaising with both Dungog Shire Council and the neighbour about appropriate steps.

26    Dungog Shire Council had provided the applicant with confidential access to a 2009 document entitled “Revised Remediation and Management Plan, Clarence Town Landfill” that was prepared for it by AECOM Australia Pty Ltd. This document examined the state of the landfill site, the evidence of contamination, and provided options for remediation.

27    Dungog Shire Council had discussed with the applicant purchasing Lot 264 in order to take back control of the land and facilitate whatever works were deemed necessary to ensure the safety of the site. The parties agreed that the applicant should obtain a valuation of Lot 264 to facilitate the negotiations.

28    In December 2015, Dungog Shire Council formally resolved to negotiate the purchase of Lot 264 from the applicant. Mr Smith annexed an extract from the minutes of the Council’s 15 December 2015 meeting obtained from the Council's website (http://www.dungog.nsw.gov. au/sites/dungog/files/public/MinutesDec15.pdf).

29    Mr Smith deposed that agreement in principle about the terms of the sale had now been reached at the senior executive level between each of the applicant and Dungog Shire Council.

30    However, the applicant was not able to take the matter further until at least:

(a)    it had satisfied the requirement in s 42 of the Aboriginal Land Rights Act and obtained a determination of native title; and

(b)    the proposed sale had then been approved by both the members of the applicant and New South Wales Aboriginal Land Council pursuant to Division 4 of Part 2 of the Aboriginal Land Rights Act.

31    Mr Smith deposed that the sale of Lot 264 was imperative and strongly in the interests of the applicant and its community. It was clear, he said, that owing to the historical use of Lot 264 as a landfill site, and to the estimated costs of remediation of the land, it was a “time bomb” liability hanging over the applicant’s head. There were serious doubts about the applicant’s ability to use the land for the benefit of its members and Aboriginal people in the applicant’s area generally. He deposed that the applicant did not need this.

32    It was solely in connection with the proposed sale of Lot 264 to Dungog Shire Council that the applicant had made the non-claimant application for a determination of native title that is the subject of these proceedings.

33    He annexed a copy of a letter dated 7 October 2016 from the National Native Title Tribunal (NNTT) to the applicant’s solicitors detailing the notification of the application and a copy of an “overlap report” provided by the NNTT to the applicant care of its solicitors on or about 13 February 2017. At [46] and [47] Mr Smith deposed as follows:

46.    I am aware of no factual basis upon which it might be said that in October 2015 or thereabouts any member of the Wonnarua Custodian's claim group occupied Lot 264. I would be very surprised by any assertion that Lot 264 was so occupied.

47.    This is because:

a.    Worimi LALC has given no person permission to do so since acquiring the land;

b.    I have frequented the site over the past 5 years and have never seen any evidence of any person occupying the land or accessing it in any manner (other than Dungog Shire Council which has had intermittent access);

c.    Lot 264 is surrounded by a high fence and a locked gate; and

d.    I find it difficult to imagine a reason why any member of the native title claim group - or any other person - would wish to use or occupy Lot 264, given the nature of the land and its condition.

34    In his second affidavit, Mr Smith deposed that at the time of his earlier affidavit, the proposal to sell the land had not been put to or approved by the applicant’s members.

35    He deposed that a meeting for the applicant’s members was held on 27 February 2018 at Murrook Cultural Centre, at 2163 Nelson Bay Road, Williamtown. He attended the meeting in his capacity as Chief Executive Officer.

36    The meeting was attended by 49 Voting Members and 2 Non-Voting Members of the applicant

37    He told the members at the meeting that personally he did not believe in selling the applicant’s land. As an Aboriginal man, it went against what he believed. He knew that many of the active members of the applicant had the same view. As CEO, and because of the potential liability, he recommended to the members at the meeting that the applicant should resolve to dispose of Lot 264.

38    The members at the meeting including people Mr Smith knew to be registered Worimi Aboriginal Owners such as Uncle Graeme Russell, Jonathan Lilley, Uncle Neville Lilley, Jacqualine McLeay (née Russell), Jemma McLeay, Justin Ridgeway, Leigh Ridgeway, Anthony Anderson, Jacqualine Henderson, Brendan Lilley, Uncle Noel John Ridgeway, Nadine Russell, Donna Witt, Daniel Witt, and Auntie Valerie Merrick.

39    Mr Smith deposed that this was the first time during his time as CEO that a resolution had been put to the applicant’s members seeking approval to dispose of land.

40    The members in attendance at the 27 February 2018 meeting resolved to sell Lot 264 to Dungog Shire Council, in these terms (as written):

Pursuant to section 42G of the Aboriginal Land Rights Act 1983, the members of Worimi Local Aboriginal Land Council approve the sale to Dungog Shire Council of Lot 264 DP48801, Clarence Town Road at Clarence Town, being the site of the former Clarence Town rubbish depot.

Approval of the sale is given subject to the conditions that:

1.    the land is to be sold for a price to be negotiated between Worimi LALC and Dungog Shire Council that takes into account the fact that the land is contaminated and requires remediation, but the land shall not be sold for less than $20,000.00 (including any GST);

2.    pursuant to s 42 of the Aboriginal Land Rights Act, Worimi LALC must first obtain an approved determination of native title.

The members confirm that in deciding to approve this sale they considered the impact of the proposed sale on the cultural and heritage significance of the land to, and also:

•    the fact that neighbors have raised concerns with the EPA about contaminants escaping from the land, and

•    the fact that Dungog Shire Council wishes to acquire the land to facilitate remediation works

While members recognise that all land is culturally significant; we do not consider this land is of any particular cultural significance. The members support Worimi LALC's proceedings seeking a determination that there is no native title in relation to Lot 264 DP48801

41    Mr Smith deposed that 46 members voted in favour of the resolution. One member abstained. Two members were absent from the meeting room at the time of the vote. No votes were recorded against the resolution.

42    Ms Bissett’s Form 5 was before the Court. It stated that the basis on which she wanted to become a party was that she belonged to the Maiangal Ngura (clan) of the Worimi Nation, Hunter Valley NSW and “Native Title was intended for Aboriginal & Torres Strait Islander People to claim land. This Act was never intended to be used by local or state land Councils to claim land.”

The submissions

43    In its first written submissions, dated 4 May 2017, the applicant directed its attention to the extinguishment ground. This submission was prepared, and evidence filed, on the assumption that the application was not opposed.

44    The applicant submitted it was entitled to make the application in relation to the area because, in the language of the table contained in s 61(1) of the Native Title Act, it was “a person who holds a non-native title interest in relation to” the whole of that land. The applicant submitted it was the registered proprietor of a freehold title.

45    The applicant submitted the Court may make a determination of native title pursuant to s 86G of the Native Title Act “after the period specified in the notice given under section 66” of that Act (s 86G(1)).

46    The NNTT, on behalf of the Native Title Registrar, gave the notice required by s 66 of the Native Title Act. The period specified in that notice pursuant to s 66 began on 19 October 2016 and ended on 18 January 2017 and had expired as at the date of the submissions.

47    The Court must not make a determination of native title in relation to an area if there is already a determination for that area (s 68, Native Title Act). The applicant submitted that the NNTT’s “overlap report” confirmed that there was no determination of native title for Lot 264.

48    The applicant submitted that if the Court made a determination of native title, s 94A required that the Court’s order must set out the details of the matters mentioned in s 225 of the Native Title Act. The applicant’s proposed order satisfied the requirements of s 225.

49    The applicant submitted that the Court may be satisfied that it was appropriate to make the order sought because there was an evidentiary basis for finding that any native title previously existing in relation to the land and been extinguished by one or more previous exclusive possession acts within the meaning of s 23B of the Native Title Act attributable to the State of New South Wales, namely certain public works. Section 23B(7) provided that an act is a previous exclusive possession act if (a) it is valid (including because of Division 2 or 2A of Part 2 of the Native Title Act); and (b) it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.

50    Native title was extinguished by such previous exclusive possession act attributable to the State of New South Wales because of s 23E of the Native Title Act and Division 2 of Part 4 of the Native Title (New South Wales) Act 1994 (NSW), that is, ss 20-22.

51    The applicant submitted that the filed evidence included material capable of establishing that Lot 264 had been the subject of the valid construction or establishment of public works, being the quarrying works previously conducted on Lot 264 by Walarobba Shire Council pursuant to a permissive occupancy issued to it for that purpose.

52    Regrettably, the applicant submitted, evidence that ought to have been available to the Court in relation to the quarrying activities was not available. The applicant and the Court had been advised by the Attorney-General that Department of Industry files previously inspected on behalf of the applicant could not now be located by that Department. By letter dated 6 March 2017 to the Deputy Registrar (Native Title), New South Wales Registry of the Court, the New South Wales Crown Solicitor’s Office for the Attorney General said in answer to a Notice to Produce:

In relation to the Departmental files sought by the Applicant in its Notice to Produce dated 10 February 2017 I am instructed that the files were unable to be located despite searches having been made by the Department.

53    As a result, the Court had the benefit only of “secondary evidence” of the nature and content of files. This was contained in the 4 May 2017 affidavit of Mr Behrendt, who inspected the files for the applicant. Significantly, Mr Behrendt’s affidavit included an email message made contemporaneously with his inspection and was corroborated by the tenure search document later provided by the Attorney General.

54    The applicant submitted the Court had reliable evidence that:

(a)    permissive Occupancy 56-3 for Quarrying issued to Walarobba Shire Council included Lot 264;

(b)    Walarobba Shire Council in fact conducted quarrying operations on areas that included Lot 264 as well as on land on the opposite side of Clarence Town Road;

(c)    some of the quarrying operations were extensive; and

(d)    the land was later used a waste dump by Dungog Shire Council for a number of years, from some time before 1988 until 1993.

55    The question of whether gravel “borrow pits” were public works had been considered on at least three occasions. In Banjima People v State of Western Australia (No 2) [2013] FCA 868; 305 ALR 1 Barker J considered (at [1459]-[1469]) that the particular pits in question (being between 1 and 5 ha and dug by a bulldozer to a depth of approximately 1.15m) were not public works because the disturbance they had caused to the land was not “major” within the ordinary meaning of that word. Importantly, however, Barker J observed at [1467], that whether an earthwork is considered major would depend on the “terrestrial context of the earthworks”. In that case the earthworks were held not to be major because of the size of the pit “in a vast area of remote country”.

56    In CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204, Barker J noted (at [730]) that no issue had been raised about whether the gravel pits in question there could be characterised as major earthworks. As no such issue had been raised he accepted without further consideration of that issue that the pits in question were public works. His Honour held, at [729], that the construction or establishment of each gravel pit extinguished native title over an area required for their access and use.

57    In Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516 ([66]-[68]), the Court observed that the evidence was “relatively indistinguishable” from that in Banjima, and that the “gravel pits displayed in the photographs ... do not appear to be significant in size”, and that there was no evidence about the size of any specific gravel pit. Marshall ACJ was not satisfied that the State had “discharged its onus of proving that the actual gravel pits in the claim area are major public works and thereby extinguish native title” ([68]). Importantly, however, his Honour did not doubt that pits made by quarrying could be major earthworks or public works.

58    In this matter, the applicant submitted, as a result of the Department of Industry’s inability to find the relevant files, the Court also did not have evidence about the size of any specific quarrying pits. The Court did however have Mr Behrendt’s observation made after inspecting photographs on the Department's files that “some of the quarrying has been extensive”. In addition, the Court may consider that evidence about the current condition of Lot 264 and surrounding land, including the photographs of the lower swale on Lot 264 evidencing a significant depression in the land, was consistent with the lands having been previously used for quarrying (in addition to its previous use as a landfill site).

59    The applicant also acknowledged that there was no firm evidence about the specific location of the quarrying pits. To the extent necessary, the applicant relied on s 251D of the Native Title Act.

60    The applicant submitted that there was evidence that the quarrying was carried out by a local government council, which satisfied the requirement in paragraph (a) of the definition of “public work”.

61    Having regard to the above, the applicant submitted the Court could appropriately proceed on the basis that Lot 264 has been the subject of public works. Further, as the use of Lot 264 as a landfill site ceased in 1993, it was clear that the public works were commenced to be constructed or established on or before 23 December 1996, qualifying them as a previous exclusive possession act for the purposes of s 23B(7)(b) of the Native Title Act.

62    The application in the present proceedings was properly notified by the NNTT on behalf of the Native Title Registrar in accordance with s 66 of the Native Title Act. No person claiming to hold native title in relation to Lot 264 commenced a claimant application within the notification period. In oral submissions, counsel for the applicant accepted that the Court’s satisfaction that no person had commenced a claimant application within the notification period must be based on an inference that nothing had been filed to that effect.

63    If the lands in these proceedings had not been transferred to the applicant pursuant to s 36 of the Aboriginal Land Rights Act, but were instead held by the State or any other person, the s 24FA protection which had arisen because of these proceedings would be sufficient to allow the lands to be lawfully and validly dealt with. In bringing and maintaining these proceedings, the applicant had done already all that would have been required in order for the State or any other person to lawfully deal with the lands (on the basis that the prescribed procedures had indicated an absence of native title). It was only because of the notations made on title pursuant s 42 of the Aboriginal Land Rights Act that the applicant was required to seek a determination in these proceedings.

64    As I have said, the Attorney-General, the State Minister under the Native Title Act, did not oppose the application. The Attorney General submitted to the decision of the Court on the application.

65    The Attorney General agreed that the applicant had standing to bring the present proceedings and the orders sought were within the jurisdiction of the Court.

66    The Attorney General submitted that the Court had jurisdiction under s 81 of the Native Title Act to make the determination sought by the applicant, since the application related to native title.

67    The Attorney General submitted that any person who wanted to be a party in relation to the application was required to notify the Court, in writing, of that intention within three months from the date on which notification of the application occurred under s 66 of the Native Title Act.

68    The notification period was from 19 October 2016 to 18 January 2017. During the notification period, NTSCORP advised that it sought to be joined as a party to the application. Ms Carol Bissett, after the notification period had expired, also sought to be made a party to the application. Unless Ms Bissett notified the Court in writing that she did not oppose the application, s 86G(1)(a) would preclude the Court making a determination without a hearing.

69    The Attorney General submitted that the applicant appeared to seek to demonstrate that any native title rights that might have existed in relation to Lot 264 had been extinguished. This required a determination of whether rights in relation to Lot 264 were inconsistent with native title and therefore had had the effect of extinguishing it.

70    With reference to s 67(1) of the Native Title Act, the Attorney General submitted that at the time the applicant’s submissions were filed, Lot 264 was within the boundaries of an unregistered native title claimant application known as the Wonnarua Traditional Custodians #3 claim, made in October 2015 (Wonnarua Custodians Claim). The Attorney General noted that on 13 June 2017 the Wonnarua Custodians Claim was dismissed by Jagot J pursuant to s 190F(6) of the Native Title Act. As such, the Court determining the present application was not constrained by s 67(1).

71    The Attorney General submitted that there was utility in the application, given that s 42 of the Aboriginal Land Rights Act prohibited a land council dealing with land (in a way that would entitle it to the protection of s 24AF) unless it was determined that native title did not exist in respect of that land. As such, the Court had power to make the negative determination.

72    Pursuant to s 23C of the Native Title Act, native title (to the extent it existed) would be extinguished over land that was the subject of a “previous exclusive possession act” (PEPA) attributable to the Commonwealth. PEPA was defined in s 23B. A PEPA attributable to a State or Territory would have the same effect as a PEPA attributable to the Commonwealth, under s 23E, if a State law was passed to that effect. In New South Wales, that law was s 20(1) of the Native Title (New South Wales) Act.

73    Section 23B(7) defined a PEPA as a valid act which “consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996”. The concept of an “act” was broadly defined in s 226 of the Native Title Act.

74    The Attorney General submitted that the applicant’s contention was that the evidence established that Lot 264 was the subject of valid construction or establishment of public works, being quarrying works previously conducted on it. The evidence disclosed that the land ceased being used as a gravel quarry in around the late 1980s. After that time and from at least August 1988, the land became used, it would appear unofficially, by the local council as a municipal garbage depot. That unofficial use ceased, according to the evidence, in around 1993.

75    Section 23C stated that an act may be valid including because of Division 2 or 2A of Part 2 of the Native Title Act. Division 2 was applicable to past acts (that is, those that took place before 1 January 1994 and which would otherwise be invalid because of native title): s 13A. Since the development of the quarry occurred after 1975 it would be invalid to the extent that it affected native title contrary to the Racial Discrimination Act 1975 (Cth) (RDA). It was likely that, to the extent native title existed in relation to Lot 264, the establishment of the quarry was an invalid act contrary to the RDA.

76    Section 14 of the Native Title Act provided for the validation of past acts attributable to the Commonwealth. Section 15 of the Native Title Act provided for the effect on native title of past acts attributable to the Commonwealth. The establishment of the quarry was attributable to the State, and as such s 19 of the Native Title Act was relevant. That section provided that if a law contained provisions to the same effect as ss 15 and 16 of the Native Title Act, the law of a State may provide that past acts attributable to the State were valid and were taken always to have been valid. The required wording was picked up by s 8 of the Native Title (New South Wales) Act. As a result, the establishment of the quarry was a valid past act, and the effect it had on native title fell to be determined by s 15 of the Native Title Act (and the cognate state legislation).

77    The Attorney General submitted that categorisation of the quarry as a Category A past act (pursuant to s 229 of the Native Title Act) would have the effect that native title was extinguished pursuant to s 15 of the Native Title Act and s 8 of the Native Title (New South Wales) Act. Relevantly, s 229(4) of the Native Title Act provided as follows:

A past act consisting of the construction or establishment of any public work is a category A past act if:

(a)    …; or

(b)    the work was constructed or established before 1 January 1994 and still existed on that day; or

(c)    ….

78    The Attorney General submitted that the applicant must demonstrate that the quarry was a “public work”, and that it was established before 1 January 1994 and still existed on that day.

79    The applicant relied on s 251D to overcome the lack of evidence about the nature and extent of the quarrying. That section provided:

In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

80    As to the timing of the quarry, the Attorney General submitted that the evidence showed that the quarry was established prior to 1 January 1994, as required by s 229(4)(b). While the evidence was silent as to the state of the land as at that date, the Attorney General submitted it was appropriate for the Court to draw inferences from the current state of the land, given the evidence disclosed that the quarrying ceased in the late 1980s, and all uses of Lot 264 had ceased by about 1993.

81    In its second set of submissions, dated 8 June 2018, the applicant addressed the alternate ground (native title “is not claimed by or cannot be proved by a native title claimant”.).

82    The applicant submitted that no individual or claim group asserted a claim to native title in relation to Lot 264. Nor had any respondent put forward cogent evidence to establish that “native title may well exist”.

83    Properly understood, the applicant submitted, Ms Bissett’s interest in relation to Lot 264 was of an “emotional, conscientious, ideological or intellectual kind” and was not the kind of interest required of a person who was a party by operation of ss 84(3) or 84(5) of the Native Title Act. Subject to any further evidence or submissions from Ms Bissett, the applicant said that, for the reasons I have summarised in [84]-[86] below, this was a clear instance where it would be appropriate for the Court to exercise its power under s 84(8) to order that Ms Bissett cease to be a party to the proceedings on the basis that she “never had, or no longer has, interests that may be affected by a determination in the proceedings” (s 84(9)(b) of the Native Title Act). It could not be said that Ms Bissett’s interests could be “genuinely, demonstrably and not indirectly affected” by any determination of these proceedings. The analysis was also relevant to the question whether native title “is not claimed by or cannot be proved by a native title claimant”, and what the applicant must do in order to discharge its onus of proof on the balance of probabilities.

84    Ms Bissett did not make any claim to hold native title in relation to Lot 264 in her Form 5. Ms Bissett had not put forward any evidence demonstrating a legal or equitable estate or interest in, or any other “right, charge, power or privilege” or “restriction on the use” of, Lot 264 to qualify as a party under s 84(3)(a)(iii). The principles relating to the required kind of interest for a party were also recently surveyed by Griffiths J in Lewis on behalf of the Warrabinga-Wiradjuri #6 v Attorney-General of New South Wales [2018] FCA 481 at [17].

85    The applicant referred to Ms Bissett’s Form 5 and to the accompanying letter to the Court dated 16 January 2017. The applicant submitted that contrary to Ms Bissett’s position, the proceeding was not about any party claiming land. The applicant was already the registered proprietor of Lot 264. Also, Ms Bissett did not refer to Lot 264, or assert any particular relationship, history or connection with it, in her Form 5 or its bundle of accompanying materials. See Jerrinja Local Aboriginal Land Council v Attorney General of the State of NSW [2013] FCA 562 at [27] per Jagot J.

86    The applicant submitted Ms Bissett did not assert that she, or any other person, held native title rights and interests in relation to Lot 264. Whatever the legal test may be, nowhere in Ms Bissett’s material was there “a bald assertion of native title” or information which was “sufficiently detailed to expose some genuine basis for [such a] claim.” Ms Bissett did not assert any other kind of relevant interest (as that term was defined in s 253 of the Native Title Act) in relation to Lot 264. Ms Bissett did refer to the Maiangal (alternately Maiangle) clan of the Worimi Nation and her membership of that group. The evidence, particularly at [23]-[28] of Mr Ridgeway’s affidavit, was to the effect that the country associated with the Maaiangal clan was located along the coast in the Nelson Bay region, well away from Lot 264 at Clarence Town.

87    The applicant also referred to the other evidence it had filed. It referred to Mr Smith’s evidence that (citations excluded):

(a)    a meeting of the members of Worimi LALC was held on 27 February 2018.

(b)    the meeting was well attended.

(c)    resolutions were passed to the effect that the members of Worimi LALC did not consider Lot 264 to be of “any particular cultural significance”, supporting Worimi LALC's application for a determination in relation to Lot 264 and to approve the sale of Lot 264 to Dungog Shire Council so that the land can be remediated.

88    The applicant also referred to Mr Ridgeway’s evidence that (citations excluded):

(a)    The dump wasn't open to the public any more by the time I moved to Clarence Town. The council had moved the public tip to Dungog by then. After that the only use I saw being made of the site was a tanker coming onto the site, perhaps once a fortnight over as long as I was there. It was a common sight.

(b)    In all the years I was there I think I only visited the dump site itself once. The rest of the time I just drove past it.

(c)    In my time living at Clarence Town, my family was the only Aboriginal family there. There may have been other people living there with Aboriginal heritage who did not identify themselves as Aboriginal, but I do not know for sure. So far as I knew we were the only Aboriginal family in town.

(d)    The old dump site at Clarence Town is not a culturally important place like these other places I've just talked about. It's not a place to camp, or to gather food from. I wouldn't do that or recommend to anyone else that they do that, because of what's been done to it over the years. It's set back from the river so you can't fish from there.

89    On the basis of its additional evidence and the lack of any cogent evidence to establish that “native title may well exist” in Lot 264, the applicant submitted that it was entitled to the orders sought.

90    In light of its submissions about the nature of Ms Bissett’s interest in relation to Lot 264 and the Native Title Act requirements for being (and remaining) a party to the proceeding, the applicant submitted that this was also an appropriate instance for the Court to exercise its power under s 84(8) of the Native Title Act to remove Ms Bissett as a party, prior to making any determination of the proceeding.

91    In short oral submissions, NTSCORP drew to the Court’s attention the judgment of Reeves J in CG (Deceased) (on behalf of the Badimia People) v Western Australia, accepting however that the Court had power in a case such as the present concerning the intersection of the Aboriginal Land Rights Act and the Native Title Act.

92    NTSCORP also drew to the attention of the Court the reasons of Bennett J in Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (No 2) [2008] FCA 1929; 181 FCR 300, particularly at [43]-[45], [57], [61] and at [88] where her Honour summarised the applicable principles in relation to a non-claimant application for a determination that no native title exists over specific land.

93    In her oral submissions, Ms Bissett submitted that the land was recognised by a lot of Aboriginal people and so, regardless of whether the land was destroyed, it was Aboriginal land. She said she was not contending that the land where the quarry was could not be sold, but if anybody wanted to sell land that was up to the owner and it was not necessary to extinguish native title to the land. She submitted that it was up to the Court to decide about extinguishment but she did not see the point. She submitted that in 2017 much of the information was in different archives which were difficult and expensive to access. She submitted that the Wonnarua claim should not have been made.

Consideration

94    In my opinion, it is not appropriate to remove Ms Bissett as a party. No formal process to this end has been filed or, so far as the evidence discloses, served on Ms Bissett. This matter was not pursued in oral submissions.

95    It seems to me that s 86G is not available but that does not matter since the application has been listed for hearing and indeed has been heard.

96    The correct approach, in my opinion, is to proceed by reference to the evidence filed on behalf of the applicant, there being no other relevant evidence adduced by any of the parties. Ms Bissett indicated that she was content for her submissions and correspondence to the Court to be treated as her opinions, comments and views on Mr Ridgeway’s affidavit.

97    There are two claimed bases upon which the Court may be satisfied that native title does not exist in relation to land the subject of a non-claimant application:

(a)    native title does not presently exist because it is not claimed by or cannot be proved by a native title claimant;

(b)    native title has been extinguished by prior acts of the Crown.

98    As to (a), I am satisfied that no other claim group or groups assert a claim to hold native title to the land. This finding supports an inference of an absence of native title. I apply the summary of the law by Griffiths J in Deerubbin Aboriginal Land Council v Attorney-General (NSW) [2017] FCA 1067 at [49]-[50] that the onus of proof is on the applicant to prove on the balance of probabilities no native title exists in relation to the land the subject of the application.

99    Although, because Ms Bissett has not consented under s 86G, I am not proceeding under that provision, it is significant that the process I have described has not brought forward any claims by a native title claimant to Lot 264. Notice has been given to the relevant representative body under s 66; public notice has been given under s 66 and no response received following that notice other than the filing of a Form 5 by the second and third respondents; and NNTT searches 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. I take into account that there has been no “cogent assertion of native title by a competent application under s 61” after the notification process: see Glenvale Holdings Pty Ltd v State of Queensland [2018] FCA 1255 at [18] per Collier J.

100    I do not regard Ms Bissett as making such a claim or as seeking to prove such a claim.

101    The applicant has, through Mr Ridgeway, adduced evidence from a person having knowledge of the existence or otherwise of native title. I find that Lot 264 was not connected with cultural or traditional uses. I refer here to the evidence of Mr Ridgeway, particularly at [12]-[22] of his affidavit, parts of which I have set out above.

102    I also take into account the letter at AWS8 showing the position no later than 15 October 1997 being that the land was secured by a chain wire mesh fence and locked gates. This, together with the more detailed evidence to which I have referred, tends strongly against the existence of native title in respect of Lot 264.

103    The reason for the non-claimant application has been explained by the applicant, and it is a satisfactory explanation.

104    On this basis, it is not necessary for the Court to consider other grounds for granting the application. I prefer not to express a concluded opinion on whether or not native title has been extinguished, assuming it had existed, given the difficulties of proof and the large inference I would have to draw in the absence of clear evidence as to the status of that part of Lot 264 where there was no quarry.

105    I should add however that I have no difficulty with the quarry on Lot 264 constituting “major earthworks” within the meaning of s 253 of the Native Title Act. That definition feeds into the definition of “public work” in the same section and, from there, to s 229(4).

106    In Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923; 104 FCR 380 at [137], to which I drew the attention of the parties, Olney J said:

A gravel pit is clearly not a “major earthwork” for the purposes of the definition of “public work” in the Native Title Act.

Although this dictum does not seem to have been the subject of direct consideration in the later cases, Banjima, CG (Deceased) and Graham, to which the parties referred, those cases have proceeded on a different basis and without referring to Wandarang on this point. The better view is that it is appropriate not to treat what Olney J said as a proposition of law but as a conclusion of fact in respect of the evidence in that case which considered the status of 48 gravel pits associated with the Nathan River Road. These gravel pits were situated between 20 metres and 550 metres from the road. His Honour said that many were within the 100 metre road corridor. For the Port Roper Road there were eight gravel pits and for the Maria Lagoon Road, three. The evidence was that the excavation of road maintenance material did cause disturbance to the pit area but progressive rehabilitation of the pit was carried out once the available material was exhausted. In my opinion these gravel pits are factually distinct from the much deeper and more substantial quarry on Lot 264 so as to make the conclusion of Olney J inapplicable.

107    My potential difficulty, and why I prefer to express no concluded view on the extinguishment question, is as to whether the quarry, the major earthwork, is over the entirety of Lot 264, some 2.7 hectares in total. I infer from AWS6 to Mr Smith’s 4 May 2017 affidavit that it is not. This is not inconsistent with the evidence that some of the quarrying has been extensive, as plainly there can be extensive quarrying on only part of a parcel of land. As to s 251D of the Native Title Act, it provides that a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. In the absence of more direct evidence, I would have hesitated to find that the unquarried area shown on AWS6 was as a matter of fact necessary for or incidental to the operation of the work, being the quarry.

Conclusion and orders

108    Orders will be made as sought by the applicant.

Associate:

Dated:    30 August 2018