Federal Court of Australia

Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales [2023] FCA 813

ORDERS

THE COURT DETERMINES AND DECLARES THAT:

1.    There is no native title in relation to the area of land and waters in the State of New South Wales comprised in and known as Lot 176 in Deposited Plan 752047.

THE COURT ORDERS THAT:

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

RAPER J

1    This is an application made pursuant to s 13(1) of the Native Title Act 1992 (Cth) for determination of native title under s 61(1) of the NTA, by the Deerubbin Local Aboriginal Land Council.

2    The Land Council seeks a determination that native title does not exist in relation to the area of land and waters in the State of New South Wales comprised in and known as Lot 176 in Deposited Plan 752047 (the Land).

3    The two respondents to the application, the Attorney General of New South Wales and NTSCORP Limited (the respondents), filed, pursuant to s 86G of the NTA, notices disclosing that the Attorney General does not oppose the application and NTSCORP neither opposes nor consents to the application.

4    The Land Council relied on the following affidavits in support of its application:

(a)    James Konrad Walkley affirmed on 29 April 2022.

(b)    Christopher Malcolm Turner affirmed on 22 June 2022.

(c)    James Konrad Walkley affirmed on 3 March 2023.

5    The respondents did not file any evidence in this proceeding.

6    This proceeding was allocated to my docket on 2 May 2023. Both the Land Council and the Attorney General requested that the matter be determined on the papers and, given they both filed instructive, detailed written submissions, I consider it appropriate to determine the matter without a hearing.

7    Accordingly, there was no opposition to the application. Despite this, I have satisfied myself that the formal requirements for such an application have been established and that the Court has the power to make the orders sought in the application. For these reasons, I am satisfied that a determination be made that native title does not exist in relation to the Land.

Background

8    On 25 October 2021, the Land Council made a non-claimant application for a determination of native title in relation to the Land under s 61(1) of the NTA.

9    The Land Council is a Local Aboriginal Land Council established under s 50 of the Aboriginal Land Rights Act 1983 (NSW). The Land Council holds the estate in fee simple in the Land, subject to any existing native title rights, pursuant to s 36 of the ALR Act (as contained in the Title Searches at Attachment C to the originating application).

10    As s 36(9) of the ALR Act provides, except as provided under subs (9A), any transfer of lands to an Aboriginal Land Council for an estate in fee simple is subject to any native title rights and interests existing in relation to the lands immediately before the transfer. Such land vested in an Aboriginal Land Council cannot be dealt with (as defined in s 40 of the ALR Act) by the Aboriginal Land Council unless the land is subject to an approved determination of native title: s 42 of the ALR Act. Sections 36(9), 36(9A), 40 and 42 of the ALR Act are extracted as follows:

36 Claims to Crown lands

…

(9)     Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

(9A)     Where the transfer of lands to an Aboriginal Land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

…

40 Interpretation

(1)     In this Division and Division 4A—

deal with land means—

(a)     sell, exchange, lease, mortgage, dispose of, or otherwise create or pass a legal or equitable interest in, land, or

(b)     grant an easement or covenant over land or release an easement or covenant benefiting land, or

(c)     enter into a biobanking agreement relating to land under the Threatened Species Conservation Act 1995 or a conservation agreement under the NPW Act, or

(d)     enter into a wilderness protection agreement relating to land under the Wilderness Act 1987, or

(e)     enter into a property vegetation plan under the Native Vegetation Act 2003, or

(f)     subdivide or consolidate land so as to affect, or consent to a plan of subdivision or consolidation of land that affects, the interests of an Aboriginal Land Council in that land, or

  (g)     make a development application in relation to land, or

(h)     any other action (including executing an instrument) relating to land that is prescribed by the regulations.

Note—

In this Act, a reference to land includes any estate or interest in land, whether legal or equitable (see section 4(1)).

…

42 Restrictions on dealing with land subject to native title

(1)     An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).

(2)     This section does not apply to or in respect of—

(a)     the lease of land by the New South Wales Aboriginal Land Council or one or more Local Aboriginal Land Councils to the Minister administering the NPW Act under Part 4A of that Act in accordance with a condition imposed under section 36A(2), or

(b)     a transfer of land to another Aboriginal Land Council, or

(c)     a lease of land referred to in section 37(3)(b).

11    The Land Council seeks a determination so it can deal with the Land. The Land Council submits that “deal with land” is defined in s 40 to have a broad meaning, which includes selling, subdividing, entering into a lease or mortgage, entering into a biobanking agreement, entering into a conservation agreement, or submitting a development application.

Role of the Attorney General

12    It is uncontroversial that, by reason of the operation of s 84(4) of the NTA, the Attorney General is a party to the non-claimant application in his capacity as the State Minister for New South Wales, as defined in s 253 of the NTA. Both provisions are extracted as follows:

84 Parties

…

State or Territory Ministers

(4)     If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the State Minister or Territory Minister for the State or Territory is a party to the proceedings unless the Minister gives the Federal Court written notice, within the period specified in the notice under section 66, that the Minister does not want to be a party.

…

253 Other definitions

Unless the contrary intention appears:

…

State Minister, in relation to a State, means:

(a)     if there is no nomination under paragraph (b)—the Premier of the State; or

(b)     a Minister of the Crown of the State nominated in writing given to the Commonwealth Minister by the Premier for the purposes of this definition.

13    Authorities have recognised that the State Minister’s role in proceedings of this kind is in the nature of parens patriae “to look after the interests of the community generally”: see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [29]; Watson v Western Australia (No 3) [2014] FCA 127 at [54]; Tweed Byron Local Aboriginal Land Council v Attorney-General (NSW) [2019] FCA 936; 373 ALR 667 at [8] per Perry J in the context of a non-claimant application by an Aboriginal Land Council. At least in relation to consent determinations (albeit arguably also by analogy in the context of an unopposed non-claimant application: at fn 6 of the Attorney General’s written submissions, he submitted that the analogy lies in the fact that both s 87, which deals with consent determinations, and s 86G, which deals, inter alia, with applications that are unopposed, fall within Pt 4, Div 1C of the NTA, which is headed “Agreements and unopposed applications”), the State Minister must be “satisfied as to the cogency of the evidence on which the applicants rely”: Munn at [29] (per Emmett J).

Statutory framework and relevant legal principles

14    Section 13(1) of the NTA permits an application to be made to the Court for a determination of native title in relation to an area for which there is no other approved determination of native title.

15    Section 61 of the NTA prescribes who may make such an application for an approved determination. This includes “a person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought” (emphasis added). Section 253 of the NTA defines a non-claimant application to mean a native title determination application that is not a claimant application, and defines interest to include, in relation to land or waters, “a legal or equitable estate or interest in the land or waters”.

16    This Court has jurisdiction to hear and determine applications in relation to native title, pursuant to s 81 of the NTA, which is as follows:

81 Jurisdiction of the Federal Court

The Federal Court has jurisdiction to hear and determine applications filed in the Federal Court that relate to native title and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.

17    Where a non-claimant application under s 61(1) of the NTA is unopposed, s 86G(1) of the NTA empowers this Court to make a determination of native title without holding a hearing, provided that a number of matters are satisfied. Section 86G of the NTA is extracted in full 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.

(Emphasis in original.)

18    In addition, when considering a non-claimant application under s 61(1), the Court must have regard to ss 94A and 225 of the NTA, which provide as follows:

94A Order containing determination of native title

An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).

…

225 Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)     who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)     the nature and extent of the native title rights and interests in relation to the determination area; and

(c)     the nature and extent of any other interests in relation to the determination area; and

(d)     the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)     to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.

(Emphasis in original.)

19    The Land Council bears the onus of satisfying this Court, on the balance of probabilities, that native title does not exist over the area in which the determination is sought: Worimi Local Aboriginal Land Council v Minister for Lands for New South Wales (No 2) [2008] FCA 1929; 181 FCR 300 at [88] (Bennett J), upheld on appeal in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 at [53]–[60].

20    Regardless of whether a non-claimant application is opposed or unopposed, the Full Court in Mace v Queensland [2019] FCAFC 233; 274 FCR 41 at [44] confirmed that the question for this Court remains the same: Namely, has the applicant discharged its burden of proof that no native title exists in the area claimed? However, there are limits to this inquiry. It is not an inquiry of a general nature as to what native title rights and interests may have existed at sovereignty, or as to how those rights or interests may or may not have continued: Mace at [55]. This inquiry is informed by the outcome of the following processes the Native Title Registrar is required to undertake.

21    The Native Title Registrar is required to undertake a notification process in accordance with s 66 of the NTA. As part of this notification process, the Registrar must provide a copy of the application to the relevant State Minister (s 66(2)), and to other appropriate representative bodies (s 66(2A)), as well as to give notice to persons or bodies specified under s 66(3)(a), and to notify the public (s 66(3)(d)). The relevant notice for which each of those persons must be informed must include a statement to the effect that “any 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” or “get the leave of the Federal Court … to become a party” (see s 66(10)(c)). Upon the expiry of that period, the notification requirement is satisfied.

22    In Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113, Jagot J helpfully summarised, at [10], the principles to be gleaned from Mace and Worimi when dealing with non-claimant applications, as follows:

10    The Full Court of the Federal Court recently considered non-claimant applications under the NTA in Mace v State of Queensland [2019] FCAFC 233; (2019) 375 ALR 717 (Mace). The following propositions are established in Mace, including principles established by an earlier decision of the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 (Worimi):

(1)    The special functions vested in an Aboriginal Land Council (ALC), such as WLALC, 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].

23    I will adopt these principles when determining this non-claimant application.

Consideration

Section 66(2) and (2A) Notification Requirements

24    I am satisfied that the formal requirements have been met for the following reasons.

25    On 27 October 2021, the National Native Title Tribunal confirmed, by letter to the Land Council’s solicitor, that pursuant to ss 66(2) and (2A) of the NTA, a copy of the Land Council’s filed originating application, together with accompanying documents had been given to the New South Wales Government and to the representative body for the area covered by the application. Both ss 66(2) and 66(2A) are extracted as follows:

66 Notice of application

…

Copies to State/Territory Minister

(2)     If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the Registrar must, as soon as is reasonably practicable, give the State Minister or Territory Minister for the State or Territory a copy of:

(a)     the application; and

(b)    any other documents that the Federal Court Chief Executive Officer gives the Native Title Registrar under section 63 in relation to the application.

Copies to representative bodies

(2A)     The Registrar must, as soon as is reasonably practicable, give the representative bodies for the area covered by the application a copy of:

(a)     the application; and

(b)     any other documents that the Federal Court Chief Executive Officer gives the Native Title Registrar under section 63 in relation to the application.

26    On 23 November 2021, the Attorney General filed a “Notice of acting – appointment of lawyer”.

27    On 24 November 2021, the Tribunal confirmed, again by letter to the Land Council’s solicitor, that the application would been publicly notified in the Koori Mail on 1 December 2021 and the Singleton Argus on 2 December 2021 and that it had given the notifications of the persons and bodies required by s 66(3)(a) of the NTA. As foreshadowed by the Tribunal, the public notifications were made in the abovementioned media publications on the dates referred to. The notices specified the notification day as being 15 December 2021 and that, if a person wanted to become a party to the application, the person was required to file a Form 5 (Notice of Intention to become a Party) with the Federal Court on or before 14 March 2022.

28    NTSCORP was the only body to file a Form 5, on 1 March 2022, within the notification period. On 15 March 2022, a Registrar of this Court ordered that NTSCORP be added as a respondent to this application.

29    On 17 March 2022, the Tribunal conducted a search of the Register of Native Title Claims and found that there was no overlap of Native Title Determination Applications, Native Title Claims, Native Title Determinations, Native Title Determination Outcomes or Indigenous Land Use Agreements.

30    On 31 August 2022, following enquiries about the suitability of the local publication used for the earlier notification, the Tribunal informed the Land Council that it had decided to re-notify the application on 7 September 2022 in the Sydney Morning Herald and the Koori Mail.

31    There have not been subsequent applications for joinder of additional respondents.

Extinguishment of native title in the application area

32    The Court must be satisfied, on the balance of probabilities, that native title does not exist in relation to the Land either because:

(a)    native title is not claimed by, or cannot be proved by, a native title claimant: see, e.g., Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 at [8]–[10] (per Perram J); or

(b)    native title has been extinguished by one or more prior acts of the Crown: see, e.g., Gandangara Local Aboriginal Land Council v Attorney General of New South Wales [2013] FCA 646 (per Griffiths J) at [59]–[65]; Mace at [49].

33    The Land Council asserts that native title has been extinguished by one or more prior acts of the Crown.

34    Subject to ss 47, 47A and 47B, extinguishment of native title is permanent: see, e.g., Tjungarrayi v Western Australia [2019] HCA 12; 269 CLR 150 at [1]. The NTA prescribes a number of occasions found to comprise historic extinguishment, which include, relevant to this application, past extinguishment by valid or validated acts, defined as either “previous exclusive possession acts” (PEPA) (s 23B) or “previous non-exclusive possession acts” (s 23F).

35    A PEPA attributable to the Commonwealth extinguishes native title rights and interests (s 23C(1)). Section 23E authorises States and Territories to adopt similar provisions in respect of previous exclusive possession acts attributable to them. Such confirmation has been made by the State of New South Wales. The combined effect of s 20 of the Native Title (New South Wales) Act 1994 (NSW) (NT(NSW) Act) and s 23E of the NTA (read together with s 23C) is that a PEPA attributable to the State of NSW wholly extinguishes native title rights and interests.

36    For the purposes of this case, by operation of s 23B(2) of the NTA, an act is a PEPA, if:

…

(a)     it is valid (including because of Division 2 or 2A of Part 2); and

…

(b)    it took place on or before 23 December 1996; and

(c)    it consists of the grant or vesting of…

(i)     a Scheduled interest…

37    By operation of s 249C of the NTA, a “Scheduled interest” includes anything stipulated in Sch 1, subject to certain exceptions which do not arise in this case. Part 1 of Sch 1 lists certain types of leases which constitute “Scheduled interests”. Relevant to this application is Item 3(8) of Pt 1 of Sch 1 of the NTA, which is extracted as follows:

3     Western Lands Act 1901, Crown Lands Consolidation Act 1913 and other land Acts

…

(8)    A special lease under section 28A of the Western Lands Act 1901 or section 75 or 75B of the Crown Lands Consolidation Act 1913 that permits the lessee to use the land or waters covered by the lease solely or primarily for any of the following:

abattoirs accommodation paddock; abattoirs and resting paddock; accommodation house; aerodrome; agriculture; agriculture or any similar purpose; agriculture (or any similar purpose) and grazing combined; archery ground; bakery; basketball court; bee and poultry farm; boatshed; boiling down works; bowling green; brick kiln; bridge; building and repairing boats; building and repairing boats or ships; building or repairing of ships; bushfire brigade facilities; cable station; church and school site; community centre; construction of drainage canal; construction of irrigation canal; council chambers; council depot; council office; coursing ground and plumpton; cricket; cultivation; cultivation of eucalyptus; Country Women’s Association rest rooms; dairying; dam; dam, weir or tank; day care centre; depot; dog and animal pound; dog racing course; domestic garden; driver training ground; equestrian grounds; erection of building; erection of coke oven; erection of dwelling; erection of machinery; factory; feedlot; ferries; freezing works; golf course; graving dock; gymnasium; horse racing course; horticulture; inn; kindergarten; land‑based aquaculture; library; lime‑kiln; mail station; manufacture of eucalyptus oil; market garden; mixed farming or any similar purpose other than grazing; motel; motor car and bike racing track; motor sports activities and facilities; neighbourhood depot; night soil depot; nursery garden; orchard; parking area; patent slip; pig and poultry farm; piggery; planting; poultry farm; power house, engine house, boiler house, bathroom, loading facilities or coal washery in connection with coal mining; pre‑school; punt house; railway siding; railway station and depot; reclamation; refreshment room; refuse tip site; research centre; residence; residential development; residential subdivision; retirement village; rifle and pistol range; sale yard; sawmill; school and church site; school or other educational institution; septic tank; sericulture; sewage farm; sheep and cattle yard; showground; site for storage of explosives; skin drying and skin packing; slaughterhouse or abattoirs accommodation paddock; slaughterhouse; slip; smelting works; smithy; sporting club building; sporting ground; sporting ground and facilities; stable; storage of explosives; storage purposes; store; sugar cane growing; surf life saving club; swimming pool; tank; tannery; telecommunications or broadcasting tower, mast or building; tobacco growing; tramway; tree farming; vegetable garden; vegetable garden and nursery; velodrome; vineyard; volunteer rescue facilities; waste depot; water race; water storage; wattle growing; weighbridge; well; whaling station; wharf; wool washing establishment.

38    The purported grants of a Scheduled interest, upon which the Land Council relies to claim extinguishment are:

(a)    Special Lease 1930-5 Parramatta for Orchard and Grazing;

(b)    Special Lease 1939-9 Parramatta for Dairying; and

(c)    Special Lease 1956-130 Metropolitan for Dairying.

(together, the Special Leases).

39    Notably each of the leases were granted prior to 31 October 1975, the date upon which the Racial Discrimination Act 1975 (Cth) commenced and as such each lease is valid: Brown (on behalf of the Ngarla People) v Western Australia (No 2) [2010] FCA 498; 268 ALR 149 at [59] (per Bennett J).

40    I accept the Land Council’s contention that each of the Special Leases was granted under s 75 of the Crown Lands Consolidation Act 1913 (NSW). A special lease granted under s 75 is recognised in Sch 1 as being a “Scheduled interest”. Section 75, as originally enacted, provided:

75.     The Minister may lease by auction or otherwise in areas not exceeding in any case three hundred and twenty acres Crown lands (not being in the Western Division) for any of the purposes hereinafter- specified, that is to say, for dams – tanks – irrigation works – wharfs – bridges – punt-houses – ferries – bathing- places – landing-places – saw-mills – brick-kilns – lime-kilns – slaughterhouses – tanneries – wool-washing establishments – quarries – fisheries – building or repairing ships or boats – tramway purposes – obtaining guano – shells – limestone – loam – brick earth – gravel – or ballast – or for an inn – store – smithy – bakery – or mail station in sparsely populated districts – or for business purposes – or for the erection of buildings – or for any purpose declared by the Minister by notification in the Gazette to be a purpose within this section, and if the letting be by auction, may determine the upset rent thereof, and may annex to any such lease such conditions reservations and provisions as he may think fit.

…

41    As submitted by the Land Council, and not disputed by the Attorney General nor NTSCORP, s 75 of the Crown Lands Consolidation Act is analogous to s 90 of the Crown Lands Act of 1884 (NSW), which provides:

90.     The Governor may lease by auction or otherwise for a term not exceeding fifteen years and in areas not exceeding in any case three hundred and twenty acres Crown Lands for any of the purposes hereinafter specified that is to say for dams – tanks – irrigation works – wharfs – bridges – punt-houses – ferries – bathing-places – landingplaces – saw-mills – brick-kilns – limekilns – slaughter-houses – tanneries – wool-washing establishments – quarries –fisheries – building or repairing ships or boats – tramway purposes – obtaining guano – shells – limestone – loam – brickearth – gravel – or ballast – or for an inn – store – smithy – bakery – or mail station in sparcely [sic] populated districts – or for any purpose declared by the Governor by proclamation in the Gazette to be a purpose within this section ...

42    I accept that none of the purposes listed in the Special Leases are contained within s 75 of the Crown Lands Consolidation Act or s 90 of the Crown Lands Act. However, the purposes were each “declared by the Governor by proclamation in the Gazette to be a purpose within” s 90 of the Crown Lands Act as follows:

(a)    “Grazing” was proclaimed on 28 August 1894 (as follows);

IN pursuance of the provisions of the Crown Lands Act of 1884, I, Sir ROBERT WILLIAM DUFF, the Governor aforesaid, with the advice of the Executive Council, do hereby approve of and declare “Grazing” to be a “Purpose” within the meaning of the 90th section of the said Act.

(b)    “Dairying” was proclaimed on 21 October 1896 (as follows); and

IN pursuance of the provisions of the Crown Lands Act of 1884, I, HENRY ROBERT, VISCOUNT HAMPDEN, the Governor aforesaid, with the advice of the Executive Council, do hereby approve of and declare “Dairying” to be a “Purpose” within the meaning of the 90th section of the said Act.

(c)    “Orchard” was proclaimed on 11 July 1906 (as follows).

IN pursuance of the provisions of the Crown Lands Act of 1884, I, Sir HARRY HOLDSWORTH HAWSON, the Governor aforesaid, with the advice of the Executive Council, do hereby approve of and declare “Manufacture of Eucalyptus Oil” and “Orchard” to be “Purposes” within the meaning of the 90th section of the said Act.

43    Section 3(f) of the Crown Lands Consolidation Act provides that such proclamations are deemed to have been made under the analogous provision of that Act:

All proclamations and notifications heretofore made, whether made under the Code of 1861–80 or the Code of 1884–1912 or the Church and School Lands Dedication Act, 1880, as to any of the following matters, that is to say: —

…

(f)     or any other proclamations or notifications of the like public nature and purport made under statutory powers which were in existence immediately before the passing of this Act ...

shall, so far as such proclamations notifications and advertisements are of full force and effect, and the operation thereof has not been exhausted, at the passing of this Act, be deemed to have been made under the analogous provisions of this Act, and may be corrected amended modified altered or revoked as if actually so made : Provided that references therein to the enactments under which they were in fact made shall be read as references to the analogous provisions of this Act.

The provisions of this Act shall be taken to be analogous to provisions in the Code of 1861–80 or the Code of 1884–1912 or the Church and School Lands Dedication Act, 1880, notwithstanding that the statutory power in question in any particular case shall now be vested in the Minister instead of in the Governor, as previously, and shall now be exercisable by notification instead of by proclamation as previously.

(Emphasis added.)

44    As a consequence, as observed by Griffiths J in Ohlsen (on behalf of the Ngemba/Ngiyampaa People) v Attorney General (NSW) [2021] FCA 169; 390 ALR 187 at [666], the effect of s 3(f) was to declare all purposes under s 90 of the Crown Lands Act to be valid purposes within s 75 of the Crown Lands Consolidation Act.

45    I have considered the conditions of each of the three special leases.

Special Lease 1939-9

46    The grant of Special Lease 1939-9 under the Crown Lands Consolidation Act was notified on 5 April 1940 in relation to portion 176, county Cumberland, Parish Nelson. The initial term of Special Lease 1939-9 was from 1 April 1940 – 31 December 1953.

47    I am satisfied that this Special Lease was granted pursuant to s 75 of the Crown Lands Consolidation Act. Whilst the operative statutory provision is not identified in the gazettal notice, at the relevant time there was no other basis for a Special Lease with the kinds of purposes set out in the gazettal notice to be granted except under s 75.

48    I note that this Special Lease 1939-9 was converted to Special Lease 1939-324 Metropolitan (as notified in the Government Gazette on 17 April 1953) as a result of changed boundaries of the Metropolitan land district, and the cancellation of the Parramatta land district.

49    I note that the Attorney General generally agreed with the Land Council’s submissions with respect to Special Lease 1939-9. However, he noted that the purpose of the lease as published in the Government Gazette was “Dairying”, whilst the tenure card records its purpose as “Dairying and agriculture”. The Attorney General submitted that the Court should only find that Special Lease 1939-9 was granted for the purpose of “Dairying”, not the additional purpose identified in the tenure card. I accept this submission, given the evidentiary status given to a Gazette notice under s 155(2) of Evidence Act 1995 (Cth) and that the Regulations under the Crown Lands Consolidation Act (as notified on 11 March 1914) required that the granting of such a lease be notified in the Gazette, which intimated its approval, and specified any additional terms and conditions.

50    The special conditions contained in the Gazette for Special Lease 1939-9 specified that the lease was subject to subss 1, 2, 4–20 and 23 of Regulation No. 106 of the Regulations under the Crown Lands Consolidation Act (as notified on 27 November 1931) (Regulation No. 106 (1931)), and also made the lease subject to a special condition allowing the rent for the last seven years of the term of the lease to be reappraised. Regulation No. 106 (1931) provides a number of “general conditions” to which special leases are subject unless otherwise specified. The special conditions for Special Lease 1939-9 purported to specify particular subsections to which the lease was subject. The specified subsections concerned matters such as the date by which rent was payable and otherwise included various provisions governing the lessee’s use of the Land. Consistent with the requirements of s 249C in relation to Scheduled interests, I am satisfied that none of these subsections brought Special Lease 1939-9 within the description of any the acts covered by ss 23B(9), (9A), (9B), (9C) or (10) (which prescribe certain acts are not PEPAs).

51    I note that the special conditions under the Gazette, which specified particular subsections of Regulation No. 106 (1931) to which Special Lease 1939-9 was subject, appear to be inconsistent with the formulation of Regulation No. 106, which presumed that each subsection would apply unless otherwise specified. Nevertheless, I am satisfied that no subsection under Regulation No. 106 (1931) fell within the description of any of the acts that are prescribed not to be PEPAs as outlined in subss 23B(9), (9A), (9B), (9C) and (10).

52    Given the same, the Attorney General submitted that the purpose stated in the Gazette notice is to be considered determinant of the purpose for which Special Lease 1939-9 was granted.

53    Further, the Attorney General submitted that this Special Lease was granted prior to 31 October 1975 (that is, the date on which the Racial Discrimination Act 1975 (Cth) commenced), and as such, is valid. NTSCORP took no issue with the Land Council’s submissions with respect to Special Lease 1939-9.

54    I accept the Land Council’s submission that the purpose of “dairying” appears in Item 3(8) of Sch 1 of the NTA. Given the same, Special Lease 1939-9 is a Scheduled interest for the purposes of s 23B(2)(c)(i) of the NTA and is a PEPA, and s 20(1) of the NT(NSW) Act confirms that Special Lease 1939-9 wholly extinguished any native title rights or interests existing in relation to the application area at the time it was granted.

Special Lease 1956-130

55    The grant of this Special Lease was notified on 17 May 1957 in relation to portion 176, county Cumberland, Parish Nelson for a term between 1 May 1957 – 31 December 1984. This lease was forfeited before the end of its term.

56    I accept, for the above reasons, that this Special Lease was granted pursuant to s 75 of the Crown Lands Consolidation Act. I also accept that the lease identified the purpose of “dairying” which is a listed purpose at Item 3(8) of Sch 1 of the NTA.

57    The special conditions contained in the Gazette for Special Lease 1956-130 specified that the lease was subject to subss 1–3, 5–16, 18, 19, 22, 25, 26, 31, 36, 38, 44, 50, 52 and 59 of Regulation No. 106 of the Regulations under the Crown Lands Consolidation Act (as notified on 22 April 1955) (Regulation No. 106 (1955)), and also made the lease subject to a special condition regarding the appraisal and reappraisal of rent. Regulation No. 106 (1955) provides a number of conditions that may be prescribed as conditions to which special leases are subject. Those specified in the special conditions for Special Lease 1956-130 concerned matters such as the date by which rent was payable and otherwise included various provisions governing the lessee’s use of the Land. Some of those provisions were in different terms to those that applied to Special Lease 1939-9. I am satisfied that none of these provisions brought Special Lease 1956-130 within the description of any of the acts covered by subs 23B(9), (9A), (9B), (9C) or (10).

58    Given the matters identified above, Special Lease 1956-130 is a Scheduled interest for the purposes of s 23B(2)(c)(i) of the NTA and is a PEPA, such that by operation of s 20(1) of the NT(NSW) Act this Special Lease wholly extinguished any native title rights or interests existing in relation to the application area at the time it was granted.

Special Lease 1930-5

59    Special Lease 1930-5 was notified on 22 May 1931.

60    The lease was for Lot 176 in Deposited Plan 752047, which was formerly identified as portion 176 in Crown Plan 986-2030, as approved on 19 October 1886. The term of the Special Lease was 1 May 1931 – 31 December 1944. The Special Lease was forfeited before the end of its term.

61    In its primary submissions, the Land Council submitted that Special Lease 1930-5 was granted in accordance with s 75 of the Crown Lands Consolidation Act. Whilst the operative statutory provision is not identified in the gazettal notice, the Land Council contended that, on 24 January 1930, there was no other basis for a Special Lease for the purposes of “Orchard and Grazing” to be granted except for s 75.

62    Further, the Land Council contended that the purposes of “agriculture (or any similar purpose) and grazing combined” and “orchard” appear in Sch 1, Pt 1, Item 3(8) of the NTA. As a matter of ordinary meaning, as the Land Council submitted, “agriculture” encompasses the work of an “orchard”. Alternatively, “orchard” is a similar purpose to “agriculture”. The Land Council also made the submission that Special Lease 1930-5 is a Scheduled interest for the purposes of s 23B(2)(c)(i) of the NTA, and is a PEPA, and that s 20(1) of the NT(NSW) Act confirms that Special Lease 1930-5 wholly extinguished any native title rights or interests existing in relation to the application area at the time it was granted.

63    The Attorney General made no submissions in respect of this lease and considered that it was unnecessary for the Court to rely on this lease in this instance. He noted that he would seek an opportunity to make further submissions if the Court found it necessary to consider the lease if it were not minded to find that any native title rights and interests had been extinguished by Special Lease 1939-9 and Special Lease 1956-130.

64    NTSCORP made a similar submission, also noting that it would seek an opportunity to make further submissions if the Court found it necessary to consider the lease.

65    In reply, the Land Council adopted the respondents’ position, and also submitted that it was unnecessary for the Court to consider and determine whether the grant of the lease extinguished native title. It did not press for the Court to do so.

66    I consider that it is unnecessary to consider this lease given that I am satisfied that there has been extinguishment of native title by later acts of the Crown, namely the granting of Special Lease 1939-9 and Special Lease 1956-130.

Disposition

67    A determination be made that there is no native title in relation to the Land identified in the application.

Associate:

Dated:    20 July 2023