Federal Court of Australia

West Wyalong Local Aboriginal Land Council v Attorney-General (NSW) [2021] FCA 1116

ORDERS

THE COURT ORDERS THAT:

1.    There be a determination of native title that no native title exists in the land and waters comprising:

(a)    Lots 304, 305 and 306 of Deposited Plan 728878, County of Bland;

(b)    Lot 388 in Deposited Plan 753135, County of Gipps;

(c)    Lot 7044 in Deposited Plan 1115128, County of Gipps;

(d)    Lots 2 and 4 in Deposited Plan 1239669, County of Gipps;

(e)    Lot 2 in Deposited Plan 1237048, County of Gipps;

(f)    Lot 1380 in Deposited Plan 705311, County of Gipps; and

(g)    Lot 50 in Deposited Plan 1218117, County of Gipps,

each of which is in the State of New South Wales.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant is the West Wyalong Local Aboriginal Land Council established under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) for the West Wyalong Local Aboriginal Land Council Area. It seeks a determination that no native title exists in the area the subject of the application (Application Area), being ten parcels of land located in or in the vicinity of the town of West Wyalong, New South Wales, which is approximately 400 km due west of Sydney.

2    The applicant’s membership is open to all people of Aboriginal descent having a sufficient association to the Council Area. The Council Area includes the Application Area.

3    The application is a non-claimant application made under ss 13(1) and 61(1) of the Native Title Act 1993 (Cth) (NT Act).

4    The ten parcels of land comprising the Application Area are:

(1)    Lots 304, 305 and 306 in Deposited Plan 728878;

(2)    Lot 388 in Deposited Plan 753135;

(3)    Lot 7044 in Deposited Plan 1115128;

(4)    Lots 2 and 4 in Deposited Plan 1239669;

(5)    Lot 2 in Deposited Plan 1237048;

(6)    Lot 1380 in Deposited Plan 705311; and

(7)    Lot 50 in Deposited Plan 1218117.

5    The applicant is the registered proprietor of an estate in fee simple in relation to each land parcel in the Application Area. Each of the land parcels was transferred to the applicant in fee simple pursuant to a land claim under s 36 of the ALR Act.

6    In accordance with s 36(9) of the ALR Act, each parcel was transferred subject to any native title rights and interests existing in the relevant land immediately before the transfer. Further, under s 42 of the ALR Act, the applicant cannot “deal with” the Application Area land unless it is the subject of an “approved determination of native title” as defined in the NT Act.

7    The term “deal with land” is defined in the s 40 of the ALR Act to include, among other things, the sale, exchange, lease, mortgage, disposal of, or other creation of or passing of a legal or equitable interest in land, the grant or release of an easement or covenant benefiting land, the making of a development application or any other action (including executing an instrument) relating to land that is prescribed by the relevant regulations. An “approved determination of native title” under the NT Act includes a determination of native title made by this Court under Pt 3 of the NT Act in relation to an area for which there is no approved determination of native title: NT Act s 13.

8    The applicant has received approaches from third parties seeking to obtain interests in the Application Area, and wishes to pursue such proposals with a view to leasing or otherwise dealing with the Application Area for the benefit of its members.

9    The applicant previously obtained a determination that no native title exists in three other parcels of land in the vicinity of West Wyalong on a similar basis to the present application: West Wyalong Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1194 (Perry J).

The respondents do not oppose the relief

10    The first respondent is the Attorney-General for New South Wales who is a necessary party as the State Minister for NSW referred to in s 84(4) and defined in s 253 of the NT Act. The first respondent does not oppose the application and has filed a notice in terms of s 86G(2) of the NT Act.

11    The second respondent is NTSCORP Ltd. It was joined as a respondent by order on 17 February 2021 under s 83(4) of the NT Act. It has also filed a notice in terms of s 86G(2) of the NT Act signifying that it neither opposes nor consents to the application. The notice states that it is funded to perform the functions of a native title representative body for NSW and the ACT pursuant to s 203FE of the NT Act. It is the designated native title representative body for the Application Area.

12    Because the respondents filed notices under s 86G(2) stating that they do not oppose an order in, or consistent with, the terms sought by the applicant, by s 86G(1) this Court can make the orders sought without the need for a hearing. However, as Emmett J said in Munn v Queensland [2001] FCA 1229; 115 FCR 109 at [22]:

The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes.

(Original emphasis.)

13    A notification of a public hearing on the Court’s daily lists operates as an additional means to publicise the fact of the application such as to give anyone who may oppose it the opportunity to do so. Moreover, I am more comfortable granting such relief after having had a public hearing; the relief that is sought has great significance and there is something to be said for it being dealt with in a manner that is open to the public. I therefore decided not to determine the matter on the papers and I required that there be a public hearing of the matter. See Ngambri Local Aboriginal Land Council v Attorney-General of New South Wales [2012] FCA 1484 at [9]-[10] per Jagot J and Gandangara Local Aboriginal Land Council v Attorney General of New South Wales [2013] FCA 646 at [9] per Griffiths J for consideration of this question.

14    I should mention that no one other than the parties already mentioned appeared at the hearing.

Notice of the application

15    On the evidence, I am satisfied of the following formal requirements.

16    The Native Title Registrar gave a copy of the application and accompanying documents to the State Government of NSW and to the native title representative body for the Application Area, being the second respondent, in accordance with ss 66(2) and (2A) of the NT Act on 21 August 2020.

17    The Native Title Registrar gave notice of the application to all required parties in accordance with ss 66(3)(a), (b) and (c) of the NT Act on 30 September 2020.

18    The Native Title Registrar caused notice of the application to be published in the Koori Mail and Daily Advertiser on 7 October 2020, in accordance with ss 66(3)(d) of the NT Act and s 6(1) of the Native Title (Notices) Determination 2011 (No 1) (Cth). The notice included details of the application, a clear description of the Application Area and a statement of how further information about the application could be obtained, in accordance with s 6(5) of the Determination.

19    The notice specified 21 October 2020 as the notification day for the Application, in accordance with ss 66(8) and 66(9) of the NT Act. The notice satisfied the requirements of s 66(10)(a) of the NT Act.

Overlap with existing native title determination

20    There is no overlap between the Application Area and any previous approved determination of native title, as required by ss 13(1) and 68 of the NT Act.

Absence of native title

The applicable principles

21    The Full Court considered non-claimant applications under the NT Act in Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41 (Jagot, Griffiths and Mortimer JJ). The principles identified in Mace include those established by the earlier decision of the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 (Moore, Mansfield and Perram JJ). They were conveniently summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10]:

(1)     The special functions vested in an Aboriginal Land Council (ALC), such as WLALC [i.e., Wagonga Local Aboriginal Land Council], by the ALRA are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no native title in relation to land, has discharged its onus of proof. As a non-claimant applicant, an ALC is in the same position as any other non-claimant applicant under the NTA: [12].

(2)     The reason for a non-claimant application does not govern the Court’s approach to the exercise of the power: [42].

(3)     Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application: [44].

(4)     The overriding proposition is that each case must be assessed on its own particular facts: [47].

(5)     Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties: [48].

(6)     The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: [52].

(7)     All issues are to be assessed on the usual standard of proof in civil litigation – proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54].

(8)     A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at sovereignty or any general inquiry into how those rights or interests may or may not have continued: [55].

(9)     The provisions of the NTA are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a native title determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [56]. Similarly common law maxims developed in different contexts are also of limited utility to the determination of a non-claimant application: [57]-[60].

(10)    In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61].

(11)     In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a “prima facie” position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63].

(12)     The question whether native title does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in Worimi at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application, in this case, WLALC.

(13)     In a non-claimant application account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NTA: [66].

(14)     No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any 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 a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72].

(15)    If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73].

(16)     The Court’s task is not to be more or less “stringent” depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: [82].

(17)     The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land 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. The quality of such evidence, rather than its extent, will be determinative: [97].

(References are to Mace.)

22    In Mace (at [84]) evidence about the following matters was identified as significant in an application such as the present:

the land and waters in question, the presence or absence of previous native title claims, any evidence of present claims or objections from persons claiming to be native title holders, of research undertaken or not undertaken by a representative body or by others, or of the knowledge (or lack of it) of Indigenous people who give evidence or provide information to a person who gives evidence, or what the Court considers can or cannot be drawn from the absence of any evidence about present connection to the claimed land and waters arising from traditional law and custom.

Positive evidence of the absence of native title

23    The evidence establishes that the Application Area is familiar to senior members of the Local Aboriginal Community, including persons considered as Elders within that Community. The application has been discussed among the membership of the applicant and their families. Further, as mentioned, the application has been notified in accordance with s 66 of the NT Act.

24    Notwithstanding the above, no native title claims, registered or unregistered overlap the Application Area, and no party has indicated any opposition to the application. Further, the Local Aboriginal Community, including persons considered as Elders within that Community, believe there is unlikely to be a claimant application in respect of the Application Area.

25    In the above regard, I mention in particular the evidence of two witnesses.

26    Marlene Lynette Collins has lived in West Wyalong and Wyalong since around 1964. She has been a member of the applicant since 1984. Ms Collins identifies with the Aboriginal Community of West Wyalong which is in the Wiradjuri tribal area. She is classed as an Elder in that Community.

27    As an Elder of the Aboriginal Community of West Wyalong, Ms Collins is responsible for ensuring cultural heritage is maintained and upholding and teaching cultural practices. Her children were born, raised and have lived in West Wyalong and her daughter still resides there.

28    Based on information she has received from her parents, Ms Collins believes that her parents, grandparents and extended family all belonged to the Corowa Tank Community before being moved to the Lake Cargelligo and Euabalong communities which form part of the Wiradjuri Ngiyampaa Nation.

29    Ms Collins is familiar with the Application Area. She says that that land has been heavily impacted from previous uses. She is not aware of any cultural heritage materials or sites of cultural significance on the land. She believes that the land is not culturally significant or important under the traditional laws or customs of the Wiradjuri People. Ms Collins also points out that the surrounding land has been subject to development with houses and businesses now adjoining or surrounding much of the Application Land.

30    Ms Collins has attended various meetings of the applicant at which the non-claimant application that is the subject of this proceeding has been discussed. She has also discussed the application with her family and other members of the applicant.

31    Ms Collins says that on the basis of her attendance at those meetings and informal discussions with other Wiradjuri from West Wyalong, she believes that the applicant’s members are supportive of the application and that there is no intention to make any native title claim in respect of the land.

32    Leanne Hampton identifies as a Wiradjuri / Ngiyampaa woman from West Wyalong. She has lived in West Wyalong and Wyalong for 45 years and has been a member of the applicant since about 1995. She also served as its Chief Executive Officer for 13 years until 2019.

33    Like Ms Collins, Ms Hampton is familiar with the Application Area. Ms Hampton also says that the land has been heavily impacted from previous uses and she is not aware of any cultural heritage materials or sites of cultural significance on the land. On the basis of oral stories told to her by her family and knowledge obtained during the discharge of her duties as the applicant’s CEO, Ms Hampton believes that the land is not culturally significant or important under the traditional laws or customs of the Wiradjuri people.

34    Ms Hampton says that the present non-claimant application has been discussed at meetings of the applicant’s members and informally with members over several years, from at least late 2017. On the basis of her attendance at those meetings and discussions, she believes that the applicant’s members are supportive of the application and that there is no intention to make any native title claim in respect of the land.

35    I note that similar evidence in relation to other land in the same vicinity was accepted and relied on in West Wyalong at [7]-[12] as satisfying Perry J that no native title exists in the land that was the subject of that case.

36    I note that that the fact that land is not of cultural or traditional importance or significance to Aboriginal people does not mean that there is no native title in that land, but it can be an indication of a lack of connection to the land under traditional laws or customs which in turn is directly relevant to the question of the existence of native title. See Mace at [181] and Wagonga at [358] (noting that Wagonga is subject to appeal and the parties advised that the appeal raises this question). Also, the fact that there is no known intention to make a native title claim to the land does not mean that as a matter of fact and law the land is not subject to native title. It does however offer some comfort inasmuch as it suggests that the Local Aboriginal Community does not regard there to be such connection to the land so as to give rise to native title.

Previous native title claim

37    The Application Area falls within the external boundaries of an historic native title claim, being the Mooka Traditional Owners Council claim (ACD6000/2002) (the Mooka claim) that was filed on 11 February 2000. Nevertheless, for the following reasons I am satisfied that the Mooka claim does not give rise to any inference that native title exists in the Application Area.

38    The Mooka claim covered a very large area. The Application Area is shown on maps that were tendered to be right on the western fringe of the Mooka claim area.

39    The Mooka claim failed the registration test for various reasons likely to prevent the claim from progressing to determination, including that the native title claim group in respect of the Mooka claim was a sub-group of a larger Wiradjuri group. The Mooka claim was discontinued on 24 April 2002, more than 19 years ago after a relatively short lifespan, and no native title claim has subsequently been filed in relation to the Application Area.

40    The first respondent notes that there were two other claims by the Mooka People in the vicinity of the Application Area: Mooka and Kalara United Families Claim (NC2002/004, ACD6001/2002) (Mooka #2) and Mooka & Kalara United Families Claim (NC2002/008, NSD6009/2002) (Mooka #3). Each of these claims is approximately 30-40 kilometres north east of the Application Area and within the area that had previously been covered by the first Mooka claim.

41    Mooka #2 was filed on 28 February 2002 and Mooka #3 was filed on 7 June 2002. Neither claim was registered. Both claims were dismissed on 16 December 2010. By further order on 23 June 2011, in response to a notice of motion filed by the Mooka applicant, the Mooka applicant was not permitted to reinstate either proceeding without leave of the Court.

42    There is no evidence of any substance that the Mooka People maintain an interest of any kind in the Application Area, notwithstanding the opportunity afforded to assert such an interest, including in response to the notification of the application under s 66 of the NTA. In Murphy v State of Queensland [2021] FCA 81 at [41], Collier J referred to the fact of there being no indication from a claim group who had previously included the relevant area in the area of a native title claim as being an indication that the claim group did not maintain an interest in the area.

The circumstances of the Application Land

43    Each of the parcels of land comprising the Application Area is surrounded by or adjacent to built-up areas with only fragmented native vegetation. Uses of the broader surrounding area include residential, industrial and retail. Some of the parcels are cleared, and each is either crossed with roads and tracks or adjacent to public roads. These matters are suggestive of an absence of an ongoing connection of Aboriginal peoples by their traditional laws and customs to the Application Area.

44    One of the tendered documents is an Aboriginal Heritage Due Diligence Assessment dated February 2021 prepared by EMM Consulting Pty Ltd for Evolution Mining (Cowal) Pty Ltd. The reason for the assessment was in support of a statement of environmental effects to support a development application by Evolution for the construction and operation of an accommodation village on Lot 7044 DP 1115128 and a portion of Lot 2 DP 1239669 (referred to in the assessment as the “study area”). Both of those Lots form part of the Application Area.

45    The assessment was undertaken and authored by archaeologists. They undertook a visual inspection of the study area for surface cultural material, the potential for buried materials, and/or previous disturbance. No new Aboriginal objects were identified during the inspection. Overall, the study area was considered to have a low likelihood of Aboriginal objects being present, due to both the highly disturbed nature of the sites from the construction of a previous accommodation village as well as being situated over 200 m from a water source and on a flat plain landform, which typically only features sporadic and isolated Aboriginal objects in undisturbed contexts.

46    Historical tenure searches show that each Lot comprising the Application Area, except for Lot 4 DP 1239699, has been the subject of a string of tenure since the 1890s from which historical non-indigenous use of the land can be inferred.

47    As mentioned, the Application Area has been heavily impacted from previous uses, there are no known cultural heritage materials or sites of cultural significance within the Application Area and the Application Area is not believed to be culturally significant or important under the traditional laws or customs of the Local Aboriginal Community.

48    The Application Area is not occupied, save for non-indigenous uses of two of the Lots. First, Lot 305 DP 728878 has a road on it that is used by an adjacent land owner to accesses property. Secondly, Lot 4 DP 1239669 is used to keep horses.

Conclusion

49    Native title is identified in s 223(1)(b) of the NT Act as depending on the connection that, relevantly, Aboriginal peoples have with land or waters by the traditional laws acknowledged and the traditional customs observed by Aboriginal peoples. Thus, as mentioned, none of the present cultural significance of the land, its present use and condition or the anticipated intention of Aboriginal peoples making a native title claim in respect of the land, is determinative of native title. However, taken together, those matters are indicative of an absence of necessary connection. I do not say that on their own they prove an absence of connection.

50    Those factors taken together with the absence of any opposition to the application – which is itself indicative of an absence of necessary connection – satisfy me, on a balance of probabilities, that no native title exists in the Application Area and that it is safe for me to make a determination of native title in those terms.

Extinguishment of native title

51    There is evidence that any native title rights and interests that did exist in the areas of Lot 1380 DP 705311, Lot 50 DP 1218117 and part of Lot 2 DP 1237048 were extinguished by the grant of previous tenure. However, in view of my conclusion with regard to the absence of native title over the Application Area it is not necessary for me to consider that evidence and to reach any conclusion with regard to extinguishment. See Darkinjung Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1136 at [49] per Griffiths J.

Conclusion

52    As explained, I am satisfied to make a native title determination that no native title exists in the Application Area.

53    I acknowledge the assistance provided to me by the thorough and careful submissions made on behalf of the parties represented before me.

Associate:

Dated:    14 September 2021