FEDERAL COURT OF AUSTRALIA

Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 76

ORDERS

THE COURT ORDERS THAT:

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

(a)    Lot 1008 in DP1239890;

(b)    Lot 1007 in DP1239890;

(c)    Lot 1004 in DP1239890;

(d)    Lot 10 of Section 18 in DP758569;

(e)    Lot 8 of Section 18 in DP758569; and

(f)    Lot 9 of Section 18 in DP758569.

2.    No order as to costs.

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

ORDERS

THE COURT ORDERS THAT:

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

(a)    Lot 7033 in Deposited Plan 1023225; and

(b)    Lot 7034 in Deposited Plan 1023225.

2.    No order as to costs.

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

ORDERS

THE COURT ORDERS THAT:

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

(a)    Lot 1 in Deposited Plan 1156997;

(b)    Lot 100 in Deposited Plan 1044282;

(c)    Lot 132 in Deposited Plan 755245;

(d)    Lot 193 in Deposited Plan 1032847;

(e)    Lot 2 in Deposited Plan 1156997;

(f)    Lot 204 in Deposited Plan 1117900 (and excluding the road shown in the title diagram);

(g)    Lot 205 in Deposited Plan 1117900;

(h)    Lot 208 in Deposited Plan 1184705;

(i)    Lot 642 in Deposited Plan 1027231;

(j)    Lot 644 in Deposited Plan 1027231;

(k)    Lot 645 in Deposited Plan 1027231;

(l)    Lot 646 in Deposited Plan 1027231;

(m)    Lot 8 in Deposited Plan 834953;

(n)    That part of Lot 107 in Deposited Plan 755245 subject of Aboriginal Land Claim 5770 that has been granted by the Crown Lands Minister (as described in Attachment A and as shown in yellow and red outlining in the map in Attachment B and as shown in shading in the topographic map prepared by the NNTT Geospatial Services in Attachment C);

(o)    That part of Lot 7034 in Deposited Plan 1030917 and adjoining Crown land subject to Aboriginal Land Claim 5773 that has been granted by the Crown Lands Minister (as shown by the blue edge in Attachment D and as described in the description in Attachment E and as shown in shading in the map prepared by the NNTT Geospatial services in Attachment F);

(p)    Lot 576 in Deposited Plan 726282;

(q)    Lot 651 in Deposited Plan 1061008;

(r)    Lot 660 in Deposited Plan 1180439;

(s)    That part of Lot 569 in Deposited Plan 722259 subject to Aboriginal Land Claims 5764 and 6925 that has been granted by the Crown Lands Minister (as described in the description in Attachment G and as shown in the map prepared by the NNTT Geospatial Services at Attachment H);

(t)    Lot 7342 in Deposited Plan 1157063;

(u)    Lot 7343 in Deposited Plan 1157063; and

(v)    That part of Lot 7331 in Deposited Plan 1148171 subject to Aboriginal Land Claim 6925 that has been granted by the Crown Lands Minister (as described in the description in Attachment I and as shown in the map prepared by the NNTT Geospatial services at Attachment J).

2.    No order as to costs.

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

Attachment A

Written description of land granted to Darkinjung Local Aboriginal Land Council identified in Minister Kelly’s letter reference 016357B being the determination of Aboriginal Land Claim 5770 in accordance with Section 36 of the Aboriginal Land Rights Act:

All that piece or parcel of land within the following boundaries:

commencing at the intersection of the eastern boundary of Lot 107 Deposited Plan 755245 (107/755245) with a line of northing 6326000 metres on the 1966 Australian Map Grid Zone 56 projection; then

southerly along the eastern boundary of 107/755245, being also the western boundary of Lot 108 Deposited Plan 755245 (108/755245) to the south-eastern corner of 107/755245, being also the left bank of Spring Creek and the south-western corner of 108/755245; then

southerly on a prolongation of the eastern boundary of 107/755245 to the right bank of Spring Creek being also the northern boundary of Lot 195 Deposited Plan 1032847 (195/1032847); then

westerly along the right bank of Spring Creek being the northern boundary of 195/1032847 to the intersection of that bank with the southerly prolongation of the western boundary of 107/755245; then

northerly along the southern prolongation of the western boundary of 107/755245 to the south-western corner of 107/755245, being also the left bank of Spring Creek and the south-eastern corner of Lot 191 Deposited Plan 1032847 (191/1032847); then

northerly along the western boundary of 107/755245 being also the eastern boundary of 191/1032847 to a point at the intersection with a line of northing 6326000 metres on the 1966 Australian Map Grid Zone 56 projection then easterly to the point of commencement.

Attachment B

Attachment C

Attachment D

Attachment E

Written description of land granted to Darkinjung Local Aboriginal Land Council

identified in Minister Amery’s letter dated 29 December 2000 following the lodgement of Aboriginal Land Claim 5773 in accordance with Section 36 of the Aboriginal Land Rights Act:

Commencing on the eastern side of Tall Timbers Road adjoining the south western corner of lot 10 in DP 21590 (10/21590) proceeding north-easterly along the south-eastern boundary of 10/21590 to a south-eastern corner of 10/21590 bearing generally 58 degrees 17’ 30” approximately 239.14 metres; then

extending by prolongation of the south-eastern boundary of 10/21590 north easterly generally 58 degrees 17’ 30” (approximately 150m) beyond any tributaries or inlets, to the intersection with the mean high water mark of Lake Macquarie (also being the eastern boundary of 7339/1167067); then

proceeding generally south-easterly along the mean high water mark of Lake Macquarie to a point that intersects not less than 30.48 metres west of the mean high water mark of the Lake Macquarie tributary inlet and the Lake Macquarie mean high water mark; then

proceeding south-westerly maintaining a 30.48 metres buffer north-westerly of the mean high water mark of Lake Macquarie and its tributaries and Inlets, to the intersection with the western boundary of 7339/1167067; then

generally south westerly along that western boundary of that lot to the northern boundary of the Easement for Sewer Pipeline (9.5m wide) as described in DP 827911 per government gazette 18.2.1994 Folio 755; then

proceeding south-westerly along the northern boundary of the aforementioned easement, bearing generally 238 degrees 17’ 30” to the intersection with the eastern side of Tall Timbers Rd; then

proceeding north-westerly along the eastern side of Tall Timbers Rd, generally bearing 328 degrees 15’ 50” approximately 191.67 metres to the point of commencement.

Attachment F

Attachment G

Written description of:

land granted to Darkinjung Local Aboriginal Land Council identified in Minister Aquilina’s letter dated 18 October 2002 being the determination of Aboriginal Land Claim 5764; and

land granted to Darkinjung Local Aboriginal Land Council identified in Minister Blairs letter dated 7 October 2016 being the determination of Aboriginal Land Claim 6923 and 6925;

in accordance with Section 36 of the Aboriginal Land Rights Act:

All that parcel of land known as Lot 569 Deposited Plan 722259 (having Folio Identifier 569/722259) excluding land buffering a road formation within that lot (subject to survey) within the following boundaries:

commencing at a point on the southern boundary of 569/722259 (also being the northern boundary of 572/723247) 10 metres west of the western edge of the existing road formation crossing the southern boundary of 569/722259; then

bounded to the west by a line bearing northerly parallel with the western-most boundary of

572/723247 (also being an eastern boundary of 569/722259) to a point intersecting with a westerly projection of a line parallel to and 10 metres north of the existing centreline of the generally east-west road formation within 569/722259 and not less than 20.12 metres perpendicular offset northerly to the southern boundary of 569/722259; then

bounded to the north by a line easterly 10 metres north of the existing centreline of the road

formation within 569/722259 and not less 20.12 metres perpendicular offset northerly of the

southern boundary of 569/722259 to the intersection with the south-eastern boundary of

569/722259 being also the north-western boundary of 7331/1148171; then

bounded to the south east by the south-eastern boundary of 569/722259 being also the north-western boundary of 7331/1148171 and the north-western boundary of Victoria Street; then

bounded to the south by the southern boundary of 569/722259, (also being the northern boundary of 572/723247) back to the point of commencement.

Attachment H

Attachment I

Written description of land granted to Darkinjung Local Aboriginal Land Council

identified in Minister Blairs letter dated 7 October 2016 being the determination of Aboriginal Land Claim 6923 and 6925 in accordance with Section 36 of the Aboriginal Land Rights Act:

All that parcel of land known as Lot 7331 Deposited Plan 1148171 (having Folio Identifier

7331/1148171) excluding land buffering a road formation within that lot (subject to survey) within the following boundaries:

commencing at the south-eastern corner of 7331/1148171 bounded to the south by the southern boundary of 7331/1148171 to the south western corner of 7331/1148171; then

bounded to the north-west by the north western boundary of 7331/1148171, being also the south-eastern boundary of 569/722259, to the intersection with a point 10 metres north of and

perpendicular to the existing centreline of the road formation within 7331/1148171; then

bounded to the north by a line generally easterly 10 metres north of the existing centreline of the road formation within 7331/1148171 to a point at the intersection with the eastern boundary of 7331/1148171 being the western side of Barton Street; then

bounded to the east by the eastern boundary of 7331/1148171 being the western side of Barton Street southerly to the point of commencement.

Attachment J

REASONS FOR JUDGMENT

GRIFFITHS J:

1    The applicant, a Local Aboriginal Land Council incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA), filed four applications in this Court for determinations under s 61(1) of the Native Title Act 1993 (Cth) (NTA) that native title does not exist in relation to certain land and waters within the Wyong and Central Coast local government areas. The four proceedings are:

(a)    Federal Court file number NSD 943 of 2017 (Darkinjung #1);

(b)    Federal Court file number NSD 2079 of 2017 (Darkinjung #2);

(c)    Federal Court file number NSD 2080 of 2017 (Darkinjung #3); and

(d)    Federal Court file number NSD 2080 of 2017 (Darkinjung #4).

2    On 3 August 2018, the Court determined that native title did not exist in the land and waters the subject of the Darkinjung #1 application: see Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales [2018] FCA 1136 (Darkinjung #1 Determination).

3    All four Darkinjung applications were made because the applicant’s current and future ability to “deal with” land the subject of the three applications is restricted as a result of the operation of ss 36(9) and 42 of the ALRA (see Darkinjung #1 Determination at [2]).

4    The present determination relates to Darkinjung #2, #3 and #4.

Summary of background matters

Darkinjung #2

5    In an amended non-claimant application filed on 27 June 2018 in Darkinjung #2, the applicant seeks a determination that native title does not exist in relation to the land and waters in the following six areas in the town of Kincumber:

(a)    Lot 1008 in Deposited Plan 1239890 in the Parish of Kincumber, County of Northumberland;

(b)    Lot 1004 in Deposited Plan 1239890 in the Parish of Kincumber, County of Northumberland;

(c)    Lot 1007 in Deposited Plan 1239890 in the Parish of Kincumber, County of Northumberland;

(d)    Lot 10 of Section 18 in Deposited Plan 758569 at Kincumber in the Parish of Kincumber, County of Northumberland;

(e)    Lot 8 of Section 18 in Deposited Plan 758569 at Kincumber in the Parish of Kincumber, County of Northumberland; and

(f)    Lot 9 of Section 18 in Deposited Plan 758569 at Kincumber in the Parish of Kincumber, County of Northumberland

(together, the Darkinjung #2 Areas).

6    The Darkinjung #2 Areas total approximately 6.7 hectares.

7    The applicant is the registered proprietor of all the lots comprising the Darkinjung #2 Areas.

Darkinjung #3

8    In a non-claimant application filed on 24 November 2017 in Darkinjung #3, the applicant seeks a determination that native title does not exist in the following two areas, being the lands formerly comprising a closed road near Koala Crescent, West Gosford within the Gosford local government area:

(a)    Lot 7033 in DP1023225 at West Gosford in the Parish of Gosford, County of Northumberland; and

(b)    Lot 7034 in Deposited Plan 1023225 at West Gosford in the Parish of Gosford, County of Northumberland

(together, the Darkinjung #3 Areas).

9    The applicant is the registered proprietor of the two lots comprising the Darkinjung #3 Areas.

Darkinjung #4

10    In an amended non-claimant application filed on 27 June 2018 in Darkinjung #4, the applicant seeks a determination that native title does not exist in relation to the land and waters in the following areas (noting that Area 4, which formed part of the original application, was removed from the amended application):

(a)    Lot 1 in Deposited Plan 1156997 at Wallarah in the Parish of Munmorah, County of Northumberland (Area 1 of Darkinjung #4);

(b)    Lot 100 in Deposited Plan 1044282 at Munmorah in the Parish of Wallarah, County of Northumberland (Area 2 of Darkinjung #4);

(c)    Lot 132 in Deposited Plan 755245 at Warnervale in the Parish of Munmorah, County of Northumberland (Area 3 of Darkinjung #4);

(d)    Lot 193 in Deposited Plan 1032847 at Wyee in the Parish of Munmorah, County of Northumberland (Area 5 of Darkinjung #4);

(e)    Lot 2 in Deposited Plan 1156997 at Wallarah in the Parish of Munmorah, County of Northumberland (Area 6 of Darkinjung #4);

(f)    Lot 204 in Deposited Plan 1117900 at Doyalson in the Parish of Munmorah, County of Northumberland (and excluding the road shown in the title diagram) (Area 7 of Darkinjung #4);

(g)    Lot 205 in Deposited Plan 1117900 at Doyalson in the Parish of Munmorah, County of Northumberland (Area 8 of Darkinjung #4);

(h)    Lot 208 in Deposited Plan 1184705 at San Remo in the Parish of Munmorah, County of Northumberland (Area 9 of Darkinjung #4);

(i)    Lot 642 in Deposited Plan 1027231 at Munmorah in the Parish of Wallarah, County of Northumberland (Area 10 of Darkinjung #4);

(j)    Lot 644 in Deposited Plan 1027231 at Munmorah in the Parish of Wallarah, County of Northumberland (Area 11 of Darkinjung #4);

(k)    Lot 645 in Deposited Plan 1027231 at Munmorah in the Parish of Wallarah, County of Northumberland (Area 12 of Darkinjung #4);

(l)    Lot 646 in Deposited Plan 1027231 at Munmorah in the Parish of Wallarah, County of Northumberland (Area 13 of Darkinjung #4);

(m)    Lot 8 in Deposited Plan 834953 at Bushells Ridge in the Parish of Munmorah, County of Northumberland (Area 14 of Darkinjung #4);

(n)    That part of Lot 107 in Deposited Plan 755245 at Bushells Ridge in the Parish of Munmorah, County of Northumberland subject of Aboriginal Land Claim 5770 that has been granted by the Crown Lands Minister (as described in Attachment A at page v above and as shown in yellow and red outlining in the map in Attachment B at page vi above and as shown in shading in the topographic map prepared by the NNTT Geospatial Services in Attachment C at page vii above) (Area 15 of Darkinjung #4);

(o)    That part of Lot 7034 in Deposited Plan 1030917 and adjoining Crown land at Kingfisher Shores in the Parish of Wallarah, County of Northumberland subject to Aboriginal Land Claim 5773 that has been granted by the Crown Lands Minister (as shown by the blue edge in the map in Attachment D at page viii above and as described in the description in Attachment E at page ix above and as shown in shading in the map prepared by the NNTT Geospatial services in Attachment F at page x above) (Area 16 of Darkinjung #4);

(p)    Lot 576 in Deposited Plan 726282 at Elizabeth Bay in the Parish of Wallarah, County of Northumberland (Area 17 of Darkinjung #4);

(q)    Lot 651 in Deposited Plan 1061008 at Norahville in the Parish of Wallarah, County of Northumberland (Area 18 of Darkinjung #4);

(r)    Lot 660 in Deposited Plan 1180439 at Toukley in the Parish of Wallarah, County of Northumberland (Area 19 of Darkinjung #4);

(s)    That part of Lot 569 in Deposited Plan 722259 at Norah Head in the Parish of Wallarah, County of Northumberland subject to Aboriginal Land Claims 5764 and 6925 that has been granted by the Crown Lands Minister (as described in the description in Attachment G at page xi above and as shown in the map prepared by the NNTT Geospatial Services in Attachment H at page xii above) (Area 20 of Darkinjung #4);

(t)    Lot 7342 in Deposited Plan 1157063 at Norah Head in the Parish of Wallarah, County of Northumberland (Area 21 of Darkinjung #4);

(u)    Lot 7343 in Deposited Plan 1157063 at Norah Head in the Parish of Wallarah, County of Northumberland (Area 22 of Darkinjung #4); and

(v)    That part of Lot 7331 in Deposited Plan 1148171 at Norah Head in the Parish of Wallarah, County of Northumberland subject to Aboriginal Land Claim 6925 that has been granted by the Crown Lands Minister (as described in the description in Attachment I at page xiii above and as shown in the map prepared by the NNTT Geospatial services in Attachment J at page xiv above) (Area 23 of Darkinjung #4)

(together, the Darkinjung #4 Areas).

11    The Darkinjung #4 Areas total approximately 5.8 square kilometres.

Some procedural matters

12    Pursuant to s 66 of the NTA, the notification period for the Darkinjung #2, #3 and #4 applications was 22 August 2018 to 21 November 2018. Public notices were published in the Koori Mail on 8 August 2018 and the Central Coast Express Advocate on 9 August 2018, which specified that the notification period was from 22 August 2018 to 21 November 2018. The National Native Title Tribunal (NNTT) provided a copy of the applications to NTSCORP Limited (NTSCORP) and to the Crown Solicitor’s Office on 1 December 2017.

13    No other person filed a native title claimant application over any of the Darkinjung #2, #3 and #4 Areas (together, the Areas) either during or after the notification period. The sole Form 5 notice of intention to become a party filed in respect of all three applications was filed by NTSCORP. It was joined as a respondent party to all three proceedings on 3 December 2018.

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

15    The applicant filed and served an affidavit of James Konrad Walkley, solicitor, affirmed on 7 December 2018, in each of the three applications (each, a Walkley Affidavit).

Key statutory provisions

16    Section 86G of the NTA is as follows:

86G    Unopposed applications

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.

The applicant’s submissions summarised

17    The applicant submitted that as it seeks the present determination in order to enable it to deal with the Areas in accordance with and for the purposes of the ALRA, the Court should have regard to the purposes of the ALRA as set out in s 3, which are to:

(a)    provide land rights for Aboriginal persons in New South Wales;

(b)    provide for representative Aboriginal Land Councils in New South Wales;

(c)    vest land in those Councils;

(d)    provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils; and

(e)    provide for the provision of community benefit schemes by or on behalf of those Councils.

Determination is within the Court’s power

18    The applicant submitted that the determination sought by it is within the Court’s power for the following reasons:

(a)    the applications are native title determination applications made under s 61 of the NTA. The applicant is the registered proprietor of the lots comprising the Darkinjung #2 Areas, Darkinjung #3 Areas and Areas 1-3, 5-14, and 17-19 inclusive of Darkinjung #4. The applicant is otherwise entitled to the transfer of Areas 15-16 and 20-23 of Darkinjung #4 in fee simple after their grant to the applicant under the ALRA. Accordingly, the applicant is a person who holds a non-native title interest in relation to the whole of those lands for the purposes of s 61(1) of the NTA;

(b)    there is no overlap between the application areas and any previous approved determination of native title for the purposes of ss 13(1) and 68 of the NTA (see [19]-[21] below in respect of the overlap analysis report for Darkinjung #4);

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

(d)    the relevant State Minister and representative body have received notice of the applications;

(e)    public notice was given under s 66 of the NTA;

(f)    the notification period specified under s 66 of the NTA expired on 21 November 2018 and the Court may make a determination of native title pursuant to s 86G of the NTA after the notification period has expired; and

(g)    the orders sought by the applicant includes all of the details required under s 225 of the NTA.

19    In respect of Darkinjung #4, the overlap analysis report provided to the applicant by the NNTT on 28 November 2018 identified an overlap between the Darkinjung #4 application and a previous native title determination with reference number NND2002/003. The applicant submitted that the extent of the overlap is negligible, as it is described as being in the order of less than 0.001 square kilometres, and affects 0.01 percent of the total Darkinjung #4 application area of 5.8 square kilometres.

20    The applicant referred to the Darkinjung #1 Determination and submitted that a similar issue arose there. The issue in Darkinjung #1 concerned a potential overlap between that application and native title determination NND2002/003 (which is the same determination overlapping with the Darkinjung #4 application). In the Darkinjung #1 Determination, the Court accepted the explanation in respect of the technical overlap there and found that there was not a previous approved determination in the land the subject of Darkinjung #1 (see Darkinjung #1 Determination at [48]).

21    The applicant submitted that the Walkley Affidavit filed in Darkinjung #4 and its annexures establish that there is a similar “technical overlap” between Darkinjung #4 and NND2002/003 with the technical overlap between Darkinjung #1 and NND2002/003. NND2002/003 and the areas the subject of the Darkinjung #1 application abut and have common boundaries in part, but there was no real overlap. For the same reason, ss 13(1) and 68 of the NTA do not prevent the Court from determining the Darkinjung #4 application, so the applicant submitted.

Appropriateness of the orders sought by the applicant

22    To make the orders sought by the applicant, the Court must be satisfied on the balance of probabilities that native title does not exist in each of the Areas, 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.

23    The applicant cited the following passage from Deerubbin Aboriginal Land Council v Attorney-General of NSW [2017] FCA 1067 (Deerubbin) at [53], which it described as the “general approach to applications of this kind”:

In accordance with the guiding principles identified in [Worimi Local Aboriginal Land Council v Minister for Lands for NSW & Anor (No. 2) [2008] FCA 1929; 181 FCR 300], many non-claimant applications have been granted on the basis of proof of the formal requirements of the NT Act only, in the absence of any detailed evidence about the existence or otherwise of native title (see, for example, Application for the Determination of Native Title made by the Metropolitan Local Aboriginal Land Council [1998] FCA 402; Deniliquin Local Aboriginal Land Council [2001] FCA 609 and Kennedy v Queensland [2002] FCA 747; 190 ALR 707)…

24    The applicant stated that it therefore relies solely on the basis set out in [22(a)] above and says that the evidence supports an inference of an absence of native title in each of the Areas because:

(a)    the prescribed procedures referred to in [12] above have not elicited any claimant applications in any of the Areas within the notification period or subsequently, nor has any person sought to be joined to the application as a respondent to assert that native title exists in any of the Areas;

(b)    The overlap analysis report provided by the NNTT in respect of Darkinjung #4 does not reveal any previous approved determinations of native title made in relation to any part of the Areas, for the reasons summarised above.

25    In these circumstances and in the absence of a “cogent assertion of native title by a competent application” made pursuant to s 61(1) of the NTA (citing Glenvale Holdings Pty Ltd v State of Queensland [2018] FCA 1255 at [18] per Collier J and Worimi Local Aboriginal Land Council v Attorney General of New South Wales [2018] FCA 1329 at [99]), the applicant submitted that the Court can be satisfied, on the balance of probabilities, that native title does not exist in the Areas.

The Attorney General’s submissions summarised

26    The Attorney General submitted that the matters in ss 86(1)(a) and (b) of the NTA are “jurisdictional preconditions” that the Court must be satisfied of in order to make an order pursuant to s 86G (the terms of s 86G are set out at [16] above).

27    For the purposes of s 86G(1)(a), the Attorney General does not oppose the application and has lodged notices under s 86G(2).

28    In respect of s 86G(1)(b), the Attorney General considers that the Court has power to make the orders sought by the applicant because:

(a)    An application may be made to the Court for a determination of native title in relation to an area for which there is no approved determination of native title: NTA, s 13. This Court has jurisdiction to hear and determine such an application: NTA, s 81.

(b)    A determination of native title is a determination whether or not native title (as defined by NTA, s 223) exists in relation to a particular area: NTA, s 225. As this application seeks a determination that native title does not exist, the Court is not required to determine the matters at paragraphs (a) to (e) of s 225 of the NTA: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466 (Badimia People) at [57].

(c)    The applicant has a “non-native title interest” in the Areas and so has standing to make such a non-claimant application (as defined by NTA, s 252) for the purposes of s 61(1) of the NTA.

(d)    The application was made in the prescribed form in accordance with s 61(5) of the NTA.

(e)    Notice of the application was given by the NNTT on behalf of the Native Title Registrar to the relevant State Minister and the Crown Solicitor and NTSCORP on 1 December 2017, in accordance with ss 66(2)-(2A) of the NTA. Notice of the application was given by way of published notices on 8 and 9 August 2018, in accordance with s 66(3) of the NTA. The notification period specified in those public notices was from 22 August 2018 to 21 November 2018, in accordance with s 66(10) of the NTA.

(f)    Accordingly, the Attorney General agrees that all formal requirements of ss 13, 61 and 66 of the NTA have been complied with.

(g)    As the application is not opposed by the Attorney General or NTSCORP, it is open to the Court to determine this application on the papers pursuant to s 86G(1) of the NTA.

29    The Attorney General submitted that in circumstances such as the present proceedings where the statutory scheme regarding notice of the application has been complied with and where no claim to hold native title to the Areas has been asserted, it is open for the Court to be satisfied that no native title exists in the Areas. Such an approach has been taken by this Court in a number of cases. However, for completeness, the Attorney General noted that the Court has, in certain cases, expressed reservations about this approach, or has looked to positive evidence that no native title is known to exist, or that the local representative body has resolved that there is no such interest.

NTSCORP’s submissions summarised

30    NTSCORP summarised the applicant’s submissions as relying solely on the formal requirements of the NTA and the absence of any assertion of native title by a native title claimant to prove that, on the balance of probabilities, native title does not exist in the Areas. NTSCORP noted that the applicant has not filed and does not rely on any evidence of Aboriginal people who have a cultural association with or traditional knowledge in relation to the Areas.

31    NTSCORP submitted that the Court has previously placed a high importance on evidence from local Aboriginal people with traditional knowledge in relation to the area subject to a non-claimant application, citing Gandangara Local Aboriginal Land Council v Attorney-General (NSW) [2013] FCA 646 (2013 Gandangara) at [20]-[22] per Griffiths J, Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 (2011 Gandangara) at [8]-[10] per Perram J and Ngambri Local Aboriginal Land Council v Attorney-General (NSW) [2012] FCA 1484 at [15] per Jagot J.

32    NTSCORP noted that such non-claimant applications “are usually accompanied by evidence of a person who might be expected to have knowledge of the existence or otherwise of a native title interest”, citing 2011 Gandangara at [8], and submitted that such evidence provides a greater certainty regarding the importance that local Aboriginal people place on the land subject to the non-claimant application. The lack of any native title application or joinder of Indigenous parties asserting a native title interest to the land does not provide certainty that the land is not of cultural or traditional importance to Aboriginal people.

33    For these reasons, NTSCORP submitted that when asserting that native title does not exist in relation to an area, the applicant ought to adduce evidence from local Aboriginal people and/or groups that have a cultural association with, or traditional knowledge relating to, the Areas. However, as the three subject Darkinjung non-claimant applications have no Aboriginal respondents, NTSCORP is not in a position to oppose the applications and has therefore filed notices pursuant to s 86G of the NTA.

34    NTSCORP also made additional submissions with respect to the correctness of Reeves J’s dissenting judgment in Badimia People (see Darkinjung #1 Determination at [47]). It is unnecessary to determine NTSCORP’s submissions on this aspect, in circumstances where the dissenting of opinion of Reeves J is not binding (see Darkinjung #1 Determination at [49]).

Disposition of the applications

35    The difficulties presented by s 42 of the ALRA and the related necessity for a negative determination of native title under s 61 of the NTA were recently discussed by Reeves J in Pate v State of Queensland [2019] FCA 25 (Pate).

36    I respectfully agree with his Honour that the relevant general approach was authoritatively laid down by the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 (Worimi Full Court). There, the Full Court said at [80]:

80.    It does not follow that the present decision is made merely on conjecture and not on evidence. That is a matter to be decided on consideration of the reasons of the primary judge and the whole of the evidence. It is obviously a difficult task to prove a negative proposition: Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 641-2. It may be established by direct evidence, circumstantial evidence, by inference or by a combination of those things. It must nevertheless be more than a scintilla (Apollo Shower Screens (1985) 1 NSWLR 561 at 565). 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.

37    In Deerubbin, I stated some relevant principles, which I considered to be consistent with Worimi Full Court, at [52] and [53] as follows (emphasis added):

52.    Where an unopposed non-claimant application in which orders are sought by consent of the parties and:

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

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

(c)    National Native Title Tribunal (NNTI) 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,

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 No 2 at [46] citing Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 at [59]).

53.    In accordance with the guiding principles identified in Worimi No 2, many non-claimant applications have been granted on the basis of proof of the formal requirements of the NT Act only, in the absence of any detailed evidence about the existence or otherwise of native title (see, for example, Application for the Determination of Native Title made by the Metropolitan Local Aboriginal Land Council [1998] FCA 402; Deniliquin Local Aboriginal Land Council [2001] FCA 609 and Kennedy v Queensland [2002] FCA 747; 190 ALR 707). That is not to say, however, that every case must be approached by reference to such cases. Primacy has to be given to the statutory language. The cases simply provide general guidance on how those powers should be exercised and applied by reference to the particular facts and circumstances of each individual case. There is a danger in viewing statements in individual cases too literally and as though they provide the answer in all cases. A more sophisticated approach is required, one which ultimately focuses upon the relevant statutory provision as applied in the particular facts and circumstances of an individual case. As McHugh JA said in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248:

In Cassell & Co Ltd v Broome [1972] AC 1027 at 1085, Lord Reid warned of the danger of placing reliance on the literal words of particular judgments instead of searching for the applicable principle. His Lordship said:

… experience has shown that those who have to apply the decision of other cases and still more those who wish to criticise it seem to find it difficult to avoid treating sentences and phrases in a single speech as if they were provisions in an Act of Parliament. They do not seem to realise that it is not the function of noble and learned Lords or indeed of any judges to frame definitions or to lay down hard and fast rules. It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive.

38    I do not view Pate as establishing a different approach. Rather, Reeves J’s decision to dismiss the application for a negative determination of native title reflected the particular facts and circumstances of that case. In particular, it is notable that the land the subject of the application there had previously been the subject of three separate native title determination applications, one of which had been accepted for registration under Pt 7 of the NTA. This meant that, to achieve that registration, the application must have met the conditions set out in s 190B of the NTA. As Reeves J pointed out at [6], one of those conditions is that the Registrar must be satisfied that “the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion”. In respect of that particular earlier application, it is evident that the applicant failed to comply with the Court’s orders which were made on 23 October 2008, with the consequence that the application was dismissed on 23 December 2008. The historical fact that the application had previously been accepted for registration remained.

39    It is perhaps unsurprising that, in those circumstances, Reeves J refused the application in Pate because his Honour was not satisfied that the applicant had adduced sufficient evidence to discharge her onus to prove, on the balance of probabilities, that no native title existed in the subject land. His Honour also noted that no evidence had been given from the Native Title Representative Body for the area expressing its views as to whether native title rights and interests were likely to exist in the subject land, noting in particular the terms of s 203BJ(b) of the NTA. At [59] and [60], Reeves J set out the reasons why he considered that the applicant had failed to discharge her evidentiary onus in the particular facts and circumstances there.

40    As noted above, NTSCORP did not oppose the applications here, not the least because it said that it was not in a position to do so in circumstances where there were no Aboriginal respondents. It drew attention, however, to previous cases in which the Court had emphasised the importance of evidence from local Aboriginal people with traditional knowledge of an area the subject to a non-claimant application, including 2011 Gandangara at [8]-[10] per Perram J; Ngambri Local Aboriginal Land Council v Attorney-General (NSW) [2012] FCA 1484] at [15] per Jagot J and 2013 Gandangara at [20]-[22] per Griffiths J. There was no such evidence in this case.

41    I respectfully agree with NTSCORP’s submission regarding the potential importance of evidence from local Aboriginal people. It is desirable in many cases that there be such evidence but, as noted above, each case necessarily turns on its own particular facts and circumstances.

42    For the following reasons, I am satisfied that the Court should make the determinations as sought by the applicant here.

43    The Court is satisfied on the evidence that the relevant procedural matters have been established and that there is neither a previous approved determination nor a current application of native title in respect of the relevant land. The applications are unopposed. I am also satisfied that this is an appropriate case in which to proceed to determinations without a hearing under s 86G of the NTA, a course which was not opposed by any of the parties.

44    The Court is satisfied that there is no evidence that there is native title in any of the Areas and I consider that it may reasonably be inferred from the evidence as to the lack of any responses to the public notices described in [12] above that there are no persons who currently believe that native title does exist in any of the Areas. It is relevant to also take into account the fact that the applicant is a Local Aboriginal Land Council for the purposes of the ALRA. That fact is not determinative, however, some weight might be given to the fact that, under s 53 of the ALRA, only adult Aboriginal persons, as defined, who are listed on the Local Aboriginal Land Council membership roll are eligible to be members of the Local Aboriginal Land Council for that area. “Adult Aboriginal person” is defined in s 4 of the ALRA to mean “an Aboriginal person who has attained the age of 18 years”. “Aboriginal person” is defined in s 4 to mean a member of the Aboriginal race of Australia, who identifies as an Aboriginal person, and is accepted by the Aboriginal community as an Aboriginal person.

45    As to the overlap analysis report in Darkinjung #4 (see [19]-[21] above), I note that the overlap between that application and the previous native title determination (NND2002/003) is negligible. It is correctly described as a “technical overlap” which is not dissimilar to that which arose in the Darkinjung #1 Determination. I accept the applicant’s submission, as summarised in [21] above, that this “technical overlap” does not prevent the Court from making a determination in respect of the Darkinjung #4 application, notwithstanding ss 13(1) and 68 of the NTA.

Conclusion

46    For these reasons, the Court is satisfied that the orders sought are within its powers and that it is appropriate to make the three determinations in the terms sought by the applicant.

Associate:

Dated:    5 February 2019