Federal Court of Australia

Awabakal Local Aboriginal Land Council v Attorney-General of New South Wales [2025] FCA 609

ORDERS

THE COURT ORDERS THAT:

1.    The non-claimant native title determination application is discontinued to the extent that it covers any land or waters within Lot 7301 in Deposited Plan 1154500 in the Parish of Mulbring, County of Northumberland.

2.    There be a determination of native title in the terms set out below.

3.    Each party to the proceeding is to bear their own costs.

THE COURT DETERMINES THAT:

4.    Native title does not exist in relation to the areas of land and waters in the state of New South Wales comprised in and known as:

(a)    Lot 100 in Deposited Plan 1189336 in the Parish of Newcastle, County of Northumberland; and

(b)    Lot 2414 in Deposited Plan 755247 in the Parish of Newcastle, County of Northumberland.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, the Awabakal Local Aboriginal Land Council (the Land Council or ALALC), is a body corporate and a Local Aboriginal Land Council constituted under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The Land Council’s objects are, among other things, to improve, promote and foster the best interests of all Aboriginal persons within its area. The Land Council’s functions are prescribed by s 52 of the ALRA.

2    Pursuant to ss 13(1) and 61(1) of the Native Title Act 1993 (Cth) (NTA), on 8 December 2023, the Land Council lodged a non-claimant native title determination application for a determination that native title does not exist over three parcels of land vested in the Land Council within the Newcastle and Cessnock Local Government Areas in New South Wales (the Application).

3    The three parcels of land are:

(1)    Lot 100 in Deposited Plan 1189336 in the Parish of Newcastle, County of Northumberland, with the street address of 57 James Street, Hamilton;

(2)    Lot 2414 in Deposited Plan 755247 in the Parish of Newcastle, County of Northumberland, with the street address of 22 Dickson Street, Lambton; and

(3)    Lot 7301 in Deposited Plan 1154500 in the Parish of Mulbring, County of Northumberland, with the street address of 2 Palmer Street, Mulbring.

4    The three parcels were transferred to the Land Council by the Crown Lands Minister on behalf of the state of NSW. It is agreed that the three parcels:

(1)    are all within the Land Council area;

(2)    were transferred to the Land Council between 18 June 2012 and 16 August 2023 pursuant to s 36(9) of the ALRA for an estate in fee simple "subject to any native title rights and interests existing in relation to the lands immediately before the transfer";

(3)    record the Land Council as the registered proprietor for the purposes of the Real Property Act 1900 (NSW); and

(4)    are "vested" in the Land Council within the meaning of s 40(2) of the ALRA.

5    As is the case with most native title determination applications in NSW on behalf of a local Aboriginal land council, the Land Council seeks a determination that no native title exists in order to deal with the land in accordance with the requirement imposed by s 42 of the ALRA: Mace v Queensland [2019] FCAFC 233; (2019) 274 FCR 41 at [8]–[11] (the Court). Specifically, subject to s 42(2) of the ALRA, the Land Council is prevented by operation of ss 36(9) and 42(1) of the ALRA from selling, exchanging, leasing, disposing of, mortgaging, or otherwise dealing with the application area unless it is the subject of an approved determination of native title within the meaning of the NTA: see Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 at [9] (the Court) (in relation to the then s 40AA of the ALRA); Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 at [13]–[25] (Perram J); Mace at [11] (the Court); see also the notification on each of the certificates of title for the three parcels.

6    As a result of the mediation held before Registrars of this Court on 27 February 2025 which ceased by orders made on 29 April 2025, the Land Council seeks leave to discontinue its application in relation to Lot 7301 before any determination is made by the Court. However, the Land Council presses its application in relation to Lots 100 and 2414 and submits that native title does not exist in relation to those lots because it has been wholly extinguished.

7    The Application is supported by the affidavit of Tegan Simone Kolodynski Thomas, Project Officer at the Land Council, affirmed on 7 December 2023. The Land Council also relies upon an agreed statement of facts filed on behalf of the parties under s 191 of the Evidence Act 1995 (Cth) (Agreed Facts), and submissions filed by the Land Council on 2 May 2025. The Agreed Facts include documents annexed to the Agreed Facts (Annexures) and the parties are agreed that the Annexures comprise accurate copies of the original documents and accurate maps.

8    The first respondent is the Attorney-General of New South Wales, who is a party pursuant to s 84(4) of the NTA in their capacity as the State Minister for NSW as defined in s 253 of the NTA (referred to in my reasons as the State). As the State explained in its written submissions filed on 21 May 2025 (NSW Submissions), the State Minister has a role in native title proceedings “in the capacity of parens patriae to look after the interests of the community generally” and, at least in relation to consent determinations, the State Minister must be “satisfied as to the cogency of the evidence upon which the applicants rely”: see Munn (For and on Behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29] (Emmett J).

9    Pursuant to a notice under s 86G of the NTA, the State advised that it does not oppose orders in the form annexed to the Land Council’s written submissions filed on 2 May 2025 for the reasons set out in the NSW Submissions. The NSW Submissions were provided to assist the Court by addressing what the State considered to be the jurisdictional preconditions and evidentiary requirements for non-claimant determinations where the non-claimant applicant seeks an approved determination that native title does not exist in relation to certain land.

10    NTSCORP Limited is the second respondent. NTSCORP performs the functions of a native title representative body for NSW and the ACT pursuant to funding under s 203FE of the NTA. On 19 May 2025, NTSCORP also filed a notice pursuant to s 86G of the NTA, notifying the Court that it neither consents to, nor opposes, the orders sought by the Land Council.

11    Finally, Mr Kevin Duncan is the third respondent, having filed a Form 5 (Notice of Intention to become a Party to an Application) during the notification period as explained below. On 5 June 2025, Mr Duncan emailed the Court, stating that he neither consents to, nor opposes, the orders sought by the Land Council.

12    The respondents thus do not oppose the orders sought by the Land Council (as contained in the Land Council’s written submissions), and all parties are content for the Application to be determined on the papers without a hearing, pursuant to s 86G of the NTA.

13    For the reasons set out below, I am satisfied that it is appropriate:

(1)    to grant leave for the Land Council to discontinue its application in relation to Lot 7301 before any determination is made by the Court;

(2)    to determine the non-claimant application with respect to Lots 100 and 2414 on the papers without a hearing pursuant to s 86G of the NTA; and

(3)    to make a determination that no native title exists in Lots 100 and 2414.

14    Finally, I acknowledge the assistance provided to the Court by the Land Council’s and State’s clear and cogent written submissions and by all of the parties for their successful efforts in reaching agreement on a comprehensive and clear statement of relevant facts through the mediation process.

2.    PRECONDITIONS TO THE MAKING OF AN APPROVED NATIVE TITLE DETERMINATION WITHOUT HOLDING A HEARING

15    Under s 13(1)(a) of the NTA, an application may be made to the Court for an approved determination of native title in relation to an area for which there is no approved determination of native title. Section 13(3)(a) relevantly provides that an approved determination of native title is “a determination of native title made on an application under paragraph (1)(a) …”: see also the definitions of “approved determination of native title” and “native title” in ss 253 and 223 of the NTA respectively.

16    By virtue of s 94A of the NTA, a determination of native title must set out details of the matters mentioned in s 225 which defines “determination of native title” as follows:

225.    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.

17    However, as the State submits, if a native title determination application is made for an order that native title does not exist in relation to the application area, it is unnecessary for the Court to address the matters in sub-ss 225(a) to (e) of the NTA because those paragraphs are not engaged: CG v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [57] (North, Mansfield, Jagot and Mortimer JJ).

18    Under s 61(1) of the NTA, “[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” may make an “[a]pplication, as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title”.

19    After an application is made pursuant to s 61 of the NTA, by virtue of ss 66(2), (2A) and (3) of the NTA, the Registrar must, as soon as is reasonably practicable, give the application to the State Minister and relevant representative bodies, and also notify the public and various other relevant people. Under s 66(10)(c) of the NTA, the notice must, among other things, state that a person who wishes to be a party to the application must notify the Court, in writing, within 3 months starting on the notification day or, after that period, obtain the leave of the Court to become a party. Moreover, as cl 6(1) of the Native Title (Notices) Determination 2011 (No. 1) (Cth) (Notices Determination) provides, a notice under s 66(3) of the NTA must be published “(a) by advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates…; and (b) in a relevant special-interest publication”: see also cl 6(5) of the Notices Determination which stipulates what the notice must include.

20    Under s 86G of the NTA, the Court is empowered to make a native title determination without holding a hearing. Section 86G(1) relevantly provides:

(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.

21    An application is unopposed for present purposes “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”: see s 86G(2) of the NTA. As earlier mentioned, the State, NTSCORP and Mr Duncan have each given notice in these terms.

22    It follows that the matters in sub-ss 86G(1)(a) and (b) are jurisdictional preconditions of which the Court must be satisfied in order to make an order pursuant to s 86G of the NTA. Thus, as Griffiths J held in Darkinjung Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1136 at [22]:

22.    There are two “jurisdictional preconditions” to a Court making an order under s 86G(1) of the NTA: (1) the application is “unopposed”; and (2) the order sought (or made) is “within the power of the Court”: Kennedy v State of Queensland [2002] FCA 747; 190 ALR 707 (Kennedy) at [21] per Sackville JA. If those jurisdictional preconditions to s 86G(1) are satisfied, then the Court “may” – that is, has a discretion to – make such an order without a hearing “if it appears appropriate to do so”: Kennedy at [28]-[30]; see also Gandangara Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 646 at [8]-[9] per Griffiths J.

3.    CONSIDERATION

3.1    Jurisdiction with respect to the Application

23    The Court has jurisdiction to hear and determine a non-claimant application under s 81 of the NTA. The Land Council, as the holder of estates in fee simple over Lots 100 and 2414, has standing to bring the Application under s 61(1) of the NTA because it is the holder of a non-native title interest in relation to the whole of the area in respect of which the native title determination is sought: see e.g., Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067.

24    Furthermore, as I held in Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales [2021] FCA 356 at [23]:

23.    [T]he operation and effect of the provisions of the [ALRA] to which I earlier referred make it clear that the issue sought to be raised by this application is not a moot one and must be determined by this Court: see also by analogy eg Lightning Ridge at [25] (Perram J). As Jagot J observed in Jerrinja Local Aboriginal Land Council v Attorney General of the State of NSW [2013] FCA 562 at [2], the interaction between the [ALRA] and the NTA mean that a land council has no alternative but to seek an approved determination that no native title exists: see also eg Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936 at [17] (Perry J).

3.2    Prescribed conditions for making a determination that no native title exists

25    The Application is made in the prescribed form in accordance with s 61(5) of the NTA.

26    I agree with the Land Council and the State that paragraphs [18] to [25] of the Agreed Facts establish the necessary notification and formal prerequisites under the NTA, namely:

18.    On 8 December 2023, pursuant to section 66(2) and 66(2A) of the NTA, the National Native Title Tribunal (NNTT) provided a copy of the non-claimant application to the Attorney General of New South Wales and the representative body for the area covered by the non-claimant application, NTSCORP Limited (NTSCORP).

19.    On 11 January 2024, the Crown Solicitor's Office filed a notice of acting - appointment of lawyer on behalf of the Attorney General of New South Wales.

20.    On 21 February 2024, the NNTT also gave notice of the application to the Commonwealth Minister, City of Newcastle and Cessnock City Council, New South Wales Aboriginal Land Council, ALALC, Telstra Corporation Limited and Amplitel Pty Ltd, and Transgrid, pursuant to section 66(3)(a) NTA.

21.    On 28 February 2024, the NNTT publicly notified the non-claimant application in the Koori Mail and the Newcastle Herald in accordance with subsections 66(3)(d) and 66(10) NTA. The notice specified a notification day of 13 March 2024 and identified the notification period as ending on 12 June 2024.

22.    During the notification period, a Form 5 (Notice of Intention to become a Party to an Application) was filed on behalf of:

(a)    Mr Kevin Duncan, on 27 March 2024; and

(b)    NTSCORP, on 9 April 2024.

Mr Duncan and NTSCORP thereafter became parties to the non-claimant application.

23.    On 20 June 2024, the NNTT conducted a search of the Register of Native Title Claims following the expiration of the notification period and found no relevant entries on the Register of Native Title Claims falling within the external boundary of the non­claimant application.

24.    There is no approved determination of native title within the meaning of section 13 of the NTA over any of the three parcels.

25.    There is no other native title determination application relating to any of the three parcels.

3.3    Determining the substantive issue of a non-claimant application

27    Where, as here, the formal preconditions under the NTA are met, before making a determination that native title does not exist, the Court must first be satisfied on the balance of probabilities that native title does not exist in relation to the Land including relevantly because any native title which may have existed has been wholly extinguished. The onus of proving that no native title exists lies upon the non-claimant applicant: Mace at [54], [64], and [115] (the Court). Furthermore, notwithstanding the functions of a local Aboriginal land council, the reasons why non-claimant applications are made more frequently in NSW and Queensland, and the fact that the application may be unopposed, the Court’s approach as to whether the burden of proof on a non-claimant application has been discharged is the same as that taken in relation to any other application, namely, “has the applicant discharged its burden of proof that no native title exists in the claim area?”: see Mace at [44], [12] and [42]. In this regard, as the Full Court in Mace explained at [47]-[49], it is clearly established that:

47.    The overriding proposition, emphasised by the Full Court in Worimi at [58], is that each case must be assessed on its own particular facts.

48.    The Court’s assessment will depend on those particular facts, on the nature of the land and the tenure involved, on the presence or absence of any present or previous native title claims and the nature and content of those claims, and on any particular evidence adduced on behalf of an applicant, and on behalf of any respondents.

49.    In some cases, and at one end of the evidentiary scale, as the Full Court in Worimi observed at [58] and [59], there may be no need to go beyond proof of an extinguishing grant of freehold title.

28    Similarly, in Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210 at [64], the Full Court explained that “[i]n some cases, a negative determination that native title does not exist in respect of an area of land may be established by proof of an extinguishing grant of freehold title”, citing Mace at [49] with approval.

29    Secondly, irrespective of whether applications are contested or unopposed, as the Full Court in Mace held at [72], the Court has a “wide discretion” as to whether or not to make a determination that no native title exists, and the exercise of that discretion cannot be “turned into any kind of checklist”. Rather, the exercise of discretion must turn on the particular circumstances of each case. In this regard, the Full Court also explained in Mace at [73] that:

73.    [T]he 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.

30    Finally, and relevantly to the exercise of the discretion, the Full Court in Mace emphasised at [66] the need for caution before making a determination that no native title exists:

66.    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 NT Act; see also s 140(2) of the Evidence Act. The appropriate level of caution to be applied, in a determination that native title exists, or does not exist, was described by the majority of the Full Court in Badimia at [48]:

The fact that a determination of native title binds the world and does not operate only between the parties applies to both positive and negative determinations. This fact warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings. But the onus remains the civil standard of the balance of probabilities. If the circumstances are such that a native title claimant application has not been established to the requisite standard, the onus of proof to support a negative determination may or may not have been discharged. If not discharged, it necessarily follows that a negative determination may not be made. If discharged, however, it does not necessarily follow that a negative determination should be made. The propriety or otherwise of making of a negative determination in such a case will depend on a wide range of circumstances. As noted, the legal character of a determination, that it will bind the world at large and not just the parties, will necessarily inform the appropriate exercise of the discretion whether or not to make a negative determination.

See also Blackburn at [153].

3.4    Has native title in relation to Lot 100 been wholly extinguished?

31    The tenure history for Lot 100 is summarised in Historical Land Status Report 3615 and set out in the Agreed Facts at [33] relevantly as follows:

(a)    On 20 November 1847, all of the land which is now Lot 100 was part of a 2000 acre grant to the Australian Agricultural Company by Governor Fitzroy.

(b)    On 31 July 1875, all of the land which is now Lot 100 (being Portions 17 and 24 in the parish of Newcastle, County of Northumberland) was purchased from the Australian Agricultural Company by Mr Isaac Charles.

Annexure C is a copy of Deed No 613, Book 176 dated 31 July 1875

(c)    On 31 July 1879, all of the land which is now Lot 100 (being Portions 17 and 24 in the parish of Newcastle, County of Northumberland) was purchased from Mr Isaac Charles by Her Most Gracious Majesty Queen Victoria.

Annexure Dis a copy of Deed No 397, Book 194 dated 31 July 1879

(d)    On 28 January 1990, a plan of the land comprised in Deed Book 194, No 397 was registered under the Real Property Act 1900 (NSW), and thereby became Lot 1 in Deposited Plan 795449.

Annexure E is a copy of Deposited Plan 795449

32    Further, as set out at [34] of the Agreed Facts:

34.    The grant referred to in subparagraph (a) of paragraph 33, and each purchase referred to in subparagraphs (b) and (c) respectively of paragraph 33 was:

(a)    of a freehold estate;

(b)    valid; and

(c)    an act attributable to the State of New South Wales within the meaning of sections 23JA and 239 of the NTA.

33    Section 23B of the NTA defines a “previous exclusive possession act” (PEPA). Under s 23B, an act is a PEPA if (among other things), the act:

(a)    is valid;

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

(c)    consists relevantly of the granting of a “freehold estate”; and

(d)    is not excluded by ss 23B(9), (9A), (9B) or (9C) of the NTA.

34    Section 20 of the Native Title (New South Wales) Act 1995 (NSW) (NTA (NSW)) and s 23E of the NTA (read together with s 23C of the NTA) confirm that a PEPA attributable, as here, to a State wholly extinguished native title rights and interests at the time when the act was done.

35    The 1847 grant consisted of a freehold estate and manifestly took place before 23 December 1996. None of the carve-outs from the definition of a PEPA in ss 23B(9), (9A), (9B) or (9C) of the NTA have any relevance to the present case. As such, I am satisfied, on the balance of probabilities, that native title has been wholly extinguished over Lot 100.

3.5    Has native title in relation to Lot 2414 been wholly extinguished?

3.5.1    Relevant provisions of the NTA and NTA (NSW)

36    The Land Council contends that all native title in Lot 2414 has been extinguished by reason of the valid establishment of public works.

37    Section 23B(7) of the NTA provides that;

(7)    An act is a previous exclusive possession act if:

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

(b)    it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.

38    Section 23C(2) of the NTA in turn provides that, if an act is a PEPA under s 23B(7) and is attributable to the Commonwealth:

(a)    the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

(b)    the extinguishment is taken to have happened when the construction or establishment of the public work began.

39    Subject to compliance with certain preconditions (which are rightly not in issue here), s 23E of the NTA provides that a law of a State or Territory “may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory”. Section 20(2) of the NTA (NSW) is such a law and provides as follows:

(2)    If an act is a previous exclusive possession act under section 23B(7) (which deals with public works) of the Commonwealth Native Title Act and is attributable to the State--

(a)    the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated, and

(b)    the extinguishment is taken to have happened when the construction or establishment of the public work began.

40    “Public work” is defined in s 253 of the NTA as meaning:

(a)    any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:

(i)    a building, or other structure (including a memorial), that is a fixture; or

(ii)    a road, railway or bridge; or

…

(b)    a building that is constructed with the authority of the Crown, other than on a lease.

41    Section 251D of the NTA further provides that:

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

42    Subject to the potential operation of sub-s 5(2), sub-s 5(1) of the NTA (NSW) provides that “[w]ords and expressions used in the Commonwealth Native Title Act and this Act have the same meanings in this Act as they have in the Commonwealth Native Title Act”. As the Land Council submits, there is no indication in the NTA (NSW) that the expression “public work”, or a reference to the land on which a public work is “situated”, are intended to bear any different meaning from that which they bear under the NTA.

3.5.2    Public works have wholly extinguished any native title in relation to Lot 2414

43    The land use history of Lot 2414 is set out at [36]-[42] of the Agreed Facts as follows:

36.    There is an entry on the list of heritage items in the Newcastle Local Environmental Plan 2012 for Lot 2414 which refers to "former Lambton Police Station and lock-up residence".

37.    The tenure history summarised in Historical Land Status Report 3615 includes:

(a)    Crown Plan 25-652 approved 20 September 1873. The plan contains a notation reading "Applied for as a site for Police Purposes Ms 84 2734...".

Annexure F is a copy of Crown Plan 25-652

(b)    Crown Plan 7296-2111, being the title diagram for Lot 2414. Crown Plan 7296-2111 was approved on 8 August 1940. Improvements labelled "Brick" and "garage" are depicted on the title diagram.

Annexure G is a copy of Crown Plan 7296-2111

(c)    That on 19 December 1941, and pursuant to sections 28 and 29 of the Crown Lands Consolidation Act 1913 (NSW), Lot 2414 was reserved from sale for police purposes, and temporarily reserved from lease generally.

Annexure H is a copy of page 4422 of the Government Gazette of New South Wales of 19 December 1941

(d)    ALALC made an Aboriginal land claim over Lot 2414 pursuant to the ALRA on 11 September 2000. The Aboriginal land claim was granted on 13 April 2021. The 1941 reserve for police purposes was revoked by operation of the ALRA.

(e)    Title to Lot 2414 was transferred to ALALC by the State of New South Wales on 1 August 2023.

38.    Crown Plan 7296-2111 (Annexure G) contains a notation which reads "Cancels part plan N. 3116 2111". Crown Plan 3116-2111 depicts Portion 2414 in the County of Northumberland, Parish of Newcastle. Lot 2414 is a smaller part of Portion 2414 as shown on Crown Plan 3116-2111. The plan was approved by the District Surveyor in 1891. Improvements shown on the plan are labelled "Police Barracks" and "Court House".

Annexure I is a copy of Crown Plan 3116-2111

39.    The use of Lot 2414 for police purposes commenced prior to 1891 and ceased by the 1990s.

40.    A number of buildings, additional structures, paths and driveways were built on Lot 2414 prior to 23 December 1996, while the land was reserved from sale and lease for police purposes.

41.    Lot 2414 has been continuously enclosed by fencing since at least 1944. It remains fenced to prevent access to the land because of asbestos contamination.

Annexure J is a series of aerial images of Lot 2414 prepared using the State's Historical Imagery Viewer (using imagery layers from 1944, 1966, 1974, 1976, 1984, 1987, 1993 and 2001 and marked to show the general location of Lot 2414).

42.    The building, additional structures, paths and driveways on Lot 2414 were constructed or established by or on behalf of the Crown prior to 23 December 1996 and are public works attributable to the State of New South Wales within the meaning of sections 23JA and 239 of the NTA.

44    I agree that the evidence, including the documents annexed to the Agreed Facts and referred to at [37], [38] and [41] of the Agreed Facts, establishes that:

(1)    since at least 1891 the land comprising Lot 2414 has been used for police purposes;

(2)    a number of buildings, additional structures, paths, driveways, and (at least since 1944) perimeter fencing (together the works) were constructed or established on Lot 2414 during this period prior to 23 December 1996;

(3)    the works are or were “public works” within the statutory definition;

(4)    the works were constructed or established by or on behalf of the Crown; and

(5)    the works are public works “attributable to the State” within the meaning of ss 23JA and 239 of the NTA.

45    The parties are also agreed, and I accept, that:

(1)    the public works referred to in [40] and [42] of the Agreed Facts are valid; and

(2)    the whole of Lot 2414 is land upon which the public works referred to in [40] and [42] of the Agreed Facts were constructed, established or situated within the meaning of s 251D of the NTA.

46    It follows that the Land Council has established that:

(1)    the whole of Lot 2414 is land upon which public works constituting PEPAs attributable to the State were constructed, established or situated; and

(2)    as a consequence, any native title which existed in relation to Lot 2414 was extinguished when the construction or establishment of those works began.

3.6    Appropriateness of making a determination that no native title exists over Lots 100 and 2414

47    I have already referred to the need to consider the appropriateness of making the determination that no native title exists in the exercise of the Court’s discretion, notwithstanding that all of the factual and legal preconditions for the making of such a determination have been met and the fact that the Application is unopposed.

48    I agree that it is appropriate to make a determination that no native title exists in relation to Lots 100 and 2414 for the reasons given by the Land Council, namely that:

(a)    the parties have engaged in mediation about the matters in s 86B(1) of the NTA. A key outcome of that mediation has been agreement between the parties regarding the facts which are necessary for a determination to be made over Lot 100 and Lot 2414.

(b)    as noted in paragraph [2] of the [Agreed Facts], the [Agreed Facts] is provided to the Court “pursuant to sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth) in order to assist the Court as quickly, inexpensively and efficiently as possible.”

(c)    the Applicant’s objects under s 51 of the ALRA include “to improve, promote and foster the best interests of all Aboriginal persons within its area” and it has brought the application to comply with the ALRA before it deals with land within the application area in accordance with and for the purposes of that Act.

4.    CONCLUSION

49    I consider that it is appropriate to determine the Application on the papers without a hearing, pursuant to s 86G of the NTA. I am also satisfied that the Land Council has discharged its burden of proving that any native title in relation to Lots 100 and 2414 which may have existed has been wholly extinguished, and that it is appropriate to make a determination that no native title exists in relation to Lots 100 and 2414. Each party is to bear its own costs.

Associate:

Dated:    13 June 2025