FEDERAL COURT OF AUSTRALIA

Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1236

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:

(1)    Lot 1 in Deposited Plan 1218515;

(2)    Lot 2 in Deposited Plan 1218515;

(3)    Lot 7330 in Deposited Plan 1142039;

(4)    Lot 7331 in Deposited Plan 1142039;

(5)    Lot 7332 in Deposited Plan 1142039;

(6)    Lot 7312 in Deposited Plan 1141582;

(7)    Lot 7313 in Deposited Plan 1141582;

(8)    Lot 7314 in Deposited Plan 1141582;

(9)    Lot 7315 in Deposited Plan 1141582;

(10)    Lot 7316 in Deposited Plan 1141582;

(11)    Lot 7317 in Deposited Plan 1141582;

(12)    Lot 7318 in Deposited Plan 1141582;

(13)    Lot 7319 in Deposited Plan 1141582;

(14)    Lot 7320 in Deposited Plan 1141582;

(15)    Lot 7321 in Deposited Plan 1141787;

(16)    Lot 871 in Deposited Plan 1237005;

(17)    Lot 1991 in Deposited Plan 727735;

(18)    Lot 259 in Deposited Plan 755242;

(19)    Lot 260 in Deposited Plan 755242;

(20)    Lot 261 in Deposited Plan 755242;

(21)    Lot 1 in Deposited Plan 1233276;

(22)    Lot 547 in Deposited Plan 39981; and

(23)    Lot 1 in Deposited Plan 1243558.

2.    No order as to costs.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    On 7 May 2019 the applicant made a non-claimant application for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (NTA). The application relates to the land and waters in 23 areas (Areas) within the Lake Macquarie City Council (LMCC) local government area (LGA), of which the applicant is the registered proprietor, and seeks a determination that native title does not exist in the Areas.

2    The Areas (which in total cover approximately 1 square km) are:

(1)    Lot 1 in Deposited Plan 1218515;

(2)    Lot 2 in Deposited Plan 1218515;

(3)    Lot 7330 in Deposited Plan 1142039;

(4)    Lot 7331 in Deposited Plan 1142039;

(5)    Lot 7332 in Deposited Plan 1142039;

(6)    Lot 7312 in Deposited Plan 1141582;

(7)    Lot 7313 in Deposited Plan 1141582;

(8)    Lot 7314 in Deposited Plan 1141582;

(9)    Lot 7315 in Deposited Plan 1141582;

(10)    Lot 7316 in Deposited Plan 1141582;

(11)    Lot 7317 in Deposited Plan 1141582;

(12)    Lot 7318 in Deposited Plan 1141582;

(13)    Lot 7319 in Deposited Plan 1141582;

(14)    Lot 7320 in Deposited Plan 1141582;

(15)    Lot 7321 in Deposited Plan 1141787;

(16)    Lot 871 in Deposited Plan 1237005;

(17)    Lot 1991 in Deposited Plan 727735;

(18)    Lot 259 in Deposited Plan 755242;

(19)    Lot 260 in Deposited Plan 755242;

(20)    Lot 261 in Deposited Plan 755242;

(21)    Lot 1 in Deposited Plan 1233276;

(22)    Lot 547 in Deposited Plan 39981; and

(23)    Lot 1 in Deposited Plan 1243558.

3    The applicant is a Local Aboriginal Land Council (LALC) incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). The land in the Areas has been transferred to the applicant in fee simple but is subject to any existing native title rights, which are preserved under s 36(9) of the ALR Act. The applicant seeks this determination because of the effect of s 36(9) and s 42 of the ALR Act which constrain the ability of an Aboriginal Land Council (ALC) to “deal with”, within the meaning of s 40(1) of the ALR Act, the land in the Areas. Section 42(1) provides that an ALC must not deal with land vested in it subject to native title rights and interests under s 36(9) unless the land is the subject of an approved determination of native title within the meaning of the NTA: see Mace v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717 at [8]-[11] (Mace).

4    The evidence relied on in support of the application is:

(1)    an affidavit of Christopher Malcolm Turner affirmed 10 January 2020 (First Turner affidavit); and

(2)    an affidavit of Christopher Malcolm Turner affirmed 6 February 2020 (Second Turner affidavit).

5    The Attorney General did not oppose the application and submitted that while it is a matter for the Court, such an order would be within the power of the Court to make. NTSCORP Limited (NTSCORP) were joined as a party to the proceedings and by way of notice dated 6 April 2020 neither consents nor opposes orders in, or consistent with, the terms sought by the applicant pursuant to s 86G of the NTA. NTSCORP also provided written submissions.

6    The applicant and the Attorney General submit that this proceeding is one which is appropriate for the Court to determine without a hearing in accordance with s 86G(1) of the NTA. As noted above, NTSCORP neither consents to, nor opposes, such a course. It follows, for the purpose of s 86G(1)(a), that the application is unopposed.

7    For the reasons given below, I make the orders sought.

Statutory framework and relevant legal principles

8    Section 13(1) of the NTA permits an application to be made to the Court for an “approved determination of native title” in relation to an area for which there is no other approved determination of native title. The Court has jurisdiction to hear and determine applications that relate to native title: NTA, s 81.

9    Section 61(1) of the NTA provides who may make such an application for an approved determination: relevantly this includes a person who holds a “non-native title interest in relation to the” relevant land: Mace at [33]. The applicant is a LALC: s 50 of the ALR Act and is the registered proprietor of land following a transfer pursuant to s 36 of the ALR Act and therefore has standing to make this application: Deerubbin Aboriginal Land Council v Attorney-General of NSW [2017] FCA 1067 at [44]; Lightning Ridge Local Aboriginal Land Council v Premier of NSW in his capacity as the State Minister pursuant to the Native Title Act (1993) Cth [2012] FCA 792 at [9].

10    Section 253 of the NTA provides both for claimant applications and non-claimant applications, and both types of application must be provided to the Native Title Registrar who is required to undertake the notification process in accordance with s 66 of the NTA: Mace at [35]-[37]. The Registrar must provide a copy of the application to the relevant State Minister: s 66(2) of the NTA, and to the appropriate representative bodies: s 66(2A) of the NTA. The Registrar is also required to give notice to persons or bodies specified in s 66(3)(a) of the NTA and to "notify the public in the determined way": s 66(3)(d) of the NTA. By s 66(10)(c) of the NTA, a notice under s 66(3)(a) or (d) must include a statement to the effect that, in relation to a non-claimant application, "a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day”: s 66(8) of the NTA, or seek leave from the Court to become a party. Once that period has ended, the notification requirement is satisfied.

11    The Native Title (Notices) Determination 2011 (No 1) is also relevant with s 6 providing that a notice under s 66(3) of the NTA must be published: by advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates, or, if the area is an offshore place, the geographical area closest to it that is an onshore place; and in a relevant special-interest publication.

12    A “determination of native title” is, as defined by s 225 of the NTA, a determination of whether or not “native title”, as defined in s 223, exists in relation to a particular area. If native title is found to exist, there must also be a determination of the matters set out in s 225 (a)-(e) of the NTA. As a non-claimant application seeks a determination that native title does not exist, those matters in s 225 are not engaged and so the Court is not required to make a determination in relation to them: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [57] (Badimia).

13    The recent judgment of the Full Court in Mace affirmed the process to be undertaken in determining claims whether they be under s 86G as in this case or where the matters are contested. In both cases the question for the Court is the same: whether the applicant discharged its burden of proof that no native title exists in the claim area: Mace at [44].

14    The Full Court observed, inter alia, that each case must be assessed on its own facts: Mace at [47] referring to Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 at [58] (Worimi), which will in turn depend upon the nature of the land and tenure; whether there have been previous native title claims; and the evidence adduced: Mace at [48]. “[W]hat is required for the applicable level of persuasion will vary from case to case”: Mace at [102]. While the nature of the evidence will vary, the Court will weigh and assess the probative strength of the particular evidence to determine whether the applicant has discharged its burden: Mace at [50], the standard of proof being proof on the balance of probabilities: Mace at [54], [64]. The Court cannot be asked to decide an application by a process of speculation: it will act only on the evidence (whether direct or indirect): Mace at [52] and see also [99]. A non-claimant application “does not involve any general inquiry into what native title rights and interests may have existed at the time of sovereignty, or effective sovereignty; nor any general inquiry into how those rights and interests may or may not have continued”: Mace at [55] referring to Worimi at [56]. Where there is “no direct or even indirect evidence of claims of connection arising from traditional law and custom to the land in question, then there may be little which would ‘cast doubt’” on the applicant’s case that no native title exists: Mace at [51] referring to Worimi at [64]. Nonetheless, even if an application were found to satisfy all the formal requirements for a non-claimant determination, “it is not inevitable that a determination that native title does not exist will be made”: Mace at [65] citing Worimi at [83]. The Court needs to determine whether to draw inferences from the absence of responses to notifications in the context of a public notification process that is based on newspapers, rather than, in 2019, social media: Mace at [65]. The Court will take account of the gravity of a negative determination and its permanency in terms of the effect on native title rights and interests, referring to s 140(2) of the Evidence Act 1995 (Cth), and Badimia at [48], [66]: Mace at [66]-[69].

15    As the Full Court observed in Mace at [72]-[73]:

“…the particular circumstances of each application are critical to the nature and extent of evidence that a Court may require in order to be satisfied whether it is appropriate to make the determination sought. Given what is at stake, and the fact that any such determination affects property rights, as against the whole world, no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make such an order and the potential combination of considerations which may arise in any particular application cannot be predicted, or turned into any kind of checklist

We also consider that even though these are not unopposed applications under s 86G, the Court is able to consider as a factor in the exercise of its power whether it is “appropriate” to make a determination that no native title exists, even if a non-claimant applicant has proven on the balance of probabilities that no native title exists. The cases might be rare indeed where, if the burden of proof is discharged, a Court would consider it inappropriate to make a negative determination. However, in principle it may be no different to the Court’s discretion to withhold relief in proceedings brought in other parts of its jurisdiction where an applicant has otherwise made out a case for relief. The circumstances which arise in the consideration of a determination to be made under the NT Act are broad, and new circumstances may yet arise, so that the Court should not foreclose consideration of such a factor. The “appropriateness” consideration governs and is a condition of the exercise of power in s 86G, and we see no reason why it is not at least a permissible factor to consider in a contested application.

16    Further in Mace the Full Court relevantly observed at [97] (emphasis in original):

The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land and waters the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of native title. A representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence. To raise an objectively arguable claim of native title sufficient to mean that a non-claimant application needs to go to a full trial, the evidence of native title need not be extensive: it will be the quality of the evidence which is determinative.

17    As to the potential significance of a prior registered claimant application, made in relation to the area later covered by a non-claimant application in Mace the Full Court accepted at [163], as explained by the Full Court plurality in Badimia at [59], that the NTA encourages all persons with a proper interest in the resolution of the native title rights and interests in relation to any particular area of land to ensure that their interest is able to be taken into account where any application in relation to that area of land is made. If the assertions made in a prior registered claim are pressed by any party, then that can be the subject of evidence in the non-claimant application and tested in the usual way. Because of the "once and for all" nature of the determination the Court is asked to make, the obligation lies upon the person who asserts the native title interest to take steps to ensure their asserted interest is taken into account by making a claimant application or by joining as a respondent to assert native title defensively. Requiring a non-claimant to address a discontinued claimant application as if it were still pressed is fundamentally at odds with the scheme of the NTA: Mace at [163].

18    As noted above, the applicant and the Attorney General accept, and NTSCORP does not oppose, that this case is appropriate to be dealt with pursuant to s 86G of the NTA which is in the following terms:

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.

19    To make the orders sought the Court must be satisfied on the balance of probabilities that native title does not exist in relation to each of the Areas either: because native title is not claimed by, or cannot be proved by, a native title claimant; or because native title has been extinguished by one or more prior acts of the Crown. The applicant referred to Gandangara Local Aboriginal Council v Attorney General of NSW [2011] FCA 383 and Gandangara Local Aboriginal Council v Attorney General of NSW [2013] FCA 646 respectively, as examples of each basis. As will become apparent from the reasons below, it was only necessary to consider the first basis.

Consideration

20    The applicant provided evidence that the formal requirements set out in s 66 of the NTA have been complied with in this case: First Turner affidavit. That evidence is considered below.

21    Pursuant to s 66 of the NTA, the notification period for the application was 3 July 2019 to 2 October 2019. The National Native Title Tribunal (NNTT), on behalf of the Native Title Registrar, advised the applicant that the application would be notified in accordance with s 66(3) by public notice to be published in the Koori Mail and the Newcastle and Lake Macquarie Star on 19 June 2019. Public notices, specifying the notification period, were duly published. The NNTT provided a copy of the application to NTSCORP and the Crown Solicitor's Office. The NNTT also gave notice of the application to the Commonwealth Minister, Lake Macquarie City Council, NSW Aboriginal Land Council, Telstra, and Transgrid.

22    During the notification period no person filed a native title claimant application over the Areas. No native title claimant application has since been filed over any of the Areas.

23    Aside from NTSCORP no person has sought to be joined to the proceeding.

24    Although in Mace the Full Court appeared to express some concern about the use of newspaper advertisements to provide notice in an era of widespread use of social media, the Full Court described the notification requirement that referred to newspapers as a “not objectively unreasonable process”: at [92]. The Full Court there observed at [92] that the notifications given by the NNTT were “published in newspapers which, we infer, are reasonably apprehended by the NNTT to reach a greater proportion of Indigenous readers than other newspapers might.” The Court postulated, for the future, that perhaps “consideration should be given more regularly to the use of social media for these notifications”: see discussion at [93]-[94]. Although the use of newspapers was not an unreasonable process in this case, the suggestion by the Full Court as to the consideration of the future use of social media is plainly sensible in the current environment.

25    NTSCORP submitted that there is no logical reason for the Court to determine the non-claimant application having regard to Reeves J’s judgment in Badimia at [105] that “a non-claimant application cannot be characterised as an application that seeks a determination that native title does not exist on an area”. However, as the Full Court observed in Mace at [69], it is the law as set out by the majority in Badimia that is the law to be applied. The Court’s task is to consider each application on its merits and decide if the non-claimant applicant has discharged its burden of proof: Mace at [44] and [82]. If the Court is satisfied that the applicant has discharged the burden of proof the Court must then consider whether it is appropriate that the determination be made: s 86G NTA; Mace at [73]. NTSCORP also submitted that there was an absence of evidence from local Aboriginal people which had previously been seen of high importance. In that context, regard must be had to the observations of the Full Court in Mace at [94] that the weight to be given to the absence of any responses will be considered in the context of all the circumstances of the application as “[t]here can be no prescription that absence of responses to NNTT notifications should be given great weight, or no weight, or something in between”. The Full Court further observed that “[t]he obligation imposed on the Native Title Registrar to give notice of an application to the relevant representative body is imposed because Parliament intends a representative body, consistently with its functions, might assist and facilitate any opposition to the non-claimant application by persons who may hold native title”: Mace at [96]. NTSCORP also relied on the observation in Mace about the manner of notification being by newspaper. Again, I have taken into account the observations of the Court in that regard.

26    The Attorney General agreed with the applicant that the formal requirements for the making of the determination have been established: Mace at [80] and so the determination sought is within the Court’s power. That said, as the Court recognised in Mace, that does not necessarily conclude the issue of whether the Court can be satisfied that native title does not exist.

27    As noted above, the question is whether the applicant discharged its burden of proof that no native title exists in the claim area: Mace at [44].

28    Accepting that each case turns on its own facts and evidence, the key evidentiary issue that arises in this application is the existence of previous claimant applications that have been made in relation to parts of the applicant’s LALC ALR Act area.

29    The applicant’s evidence is that there have been 28 native title applications made in the LMCC LGA since 1995, of which 12 were non-claimant applications: First Turner affidavit at [19]. The Applicant identifies 12 claimant applications all of which have either been discontinued or dismissed and details are provided: First Turner affidavit at [22(a)-(h)].

30    An issue arises in relation to the Awabakal and Guringai People’s Claim: First Turner affidavit at [34]-[40]. That claim was registered between 13 June 2013 and 30 June 2017 and was discontinued on 28 June 2017. The applicant identifies that it is “likely to have related to at least some of the Areas” and, is analogous to the situation that was before the Full Court in Mace. Mace was a decision concerning two non-claimant applications, one from Queensland (QUD31/2018) and the other from NSW (NSD1852/2018) (Darkinjung No 5). In Darkinjung No 5, Bahtabah was joined to the claim as a respondent: First Turner affidavit at [36], which was considered in Mace at [167]-[182]. The applicant contended that, but for the fact that it did not put the former Awabakal and Guringai People specifically on notice of its intention to make this non-claimant application before the claimant application was discontinued, the facts in this case are relevantly the same as those canvassed in Mace.

31    In Mace the Full Court made a number of findings about that claim, based on agreed facts. Those facts are identified in the First Turner affidavit at [34]-[40]. The evidence demonstrates that the Attorney General had not accepted that connection had been proved by the Awabakal applicant to the standard required and the Attorney General had indicated that a “non-native title settlement” was not available: First Turner affidavit at [38]. It was on that basis that the claim was discontinued.

32    The applicant submitted its non-claimant application is the sixth such application to be notified under the NTA since the discontinuance of the Awabakal and Guringai People's claim in relation to that former claim area. The application in Mace was the fifth application for which it was concluded at [165]:

If those who brought the Awabakal and Guringai People’s claim have not come forward by now, it is reasonable to infer those people no longer assert native title continues to exist in the area claimed in this non-claimant application.

33    In the context of these particular facts and circumstances, the applicant submitted that there is ample basis for the Court to conclude, on the balance of probabilities, as in Mace at [164]:

…whatever might have been the situation in the past, the situation at the time this non-claimant application falls to be decided is that there are no persons or groups who assert native title rights and interests in the claimed land.    ·

34    It was submitted that conclusion applies to each of the Areas.

35    I accept the applicant’s submission in respect to the Awabakal and Guringai People’s Claim.

36    The only other claimant application which may have overlapped with the Areas the subject of the current application is the claim made by the Boongary Clan of the Taurai People: First Turner affidavit at [22(b)]. The applicant has attested that there is a lack of certainty as the details of that former claim’s application area are not recorded in sufficiently certain terms to be clear to make a firm assessment one way or the other. The claim (NSD6097/1998) was registered on a transitional basis between 1 April 1998 and 1 December 1999: First Turner affidavit at [28]-[30] at which time it was not accepted for registration, and there is no further evidence about it. On that basis the applicant submitted and the Attorney General accepted, that there would be no basis for the claim being described as having been “sustained”: Mace at [121].

37    The Attorney General submitted that ultimately it is a matter for the Court whether a determination ought to be made, but he has not identified any basis upon which it would oppose the making of the determination on the ground that native title is not claimed by any party.

Conclusion

38    The Court is concerned with an unopposed non-claimant application. I am satisfied that the procedural requirements have been established. Having regard to the evidence, submissions, and relevant principles, I am satisfied on the balance of probabilities that no native title claims exist in the Areas. I am satisfied the orders sought are within this Court’s power, and that it is appropriate to make the determination in the terms sought by the applicant.

39    Having reached that conclusion it is unnecessary for me to address the second, and alternative limb of the application relating to evidence of extinguishment: Darkinjung Local Aboriginal Council v Attorney-General of New South Wales [2018] FCA 1136 at [49]; Awabakal Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1249 at [30].

40    I make no order as to costs.

Associate:

Dated:    26 August 2020