Federal Court of Australia

Metropolitan Local Aboriginal Land Council #2 v Attorney-General of New South Wales [2025] FCA 610

ORDERS

THE COURT DETERMINES THAT:

1.    Native title does not exist in relation to the land and waters in the State of New South Wales comprised in and known as Lot 89 in Deposited Plan 752038.

AND THE COURT NOTES THAT:

A.    This determination was made without a hearing, pursuant to s 86G of the Native Title Act 1993 (Cth).

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

REASONS FOR JUDGMENT

HILL J:

INTRODUCTION

1    The Applicant (Metropolitan LALC) seeks a determination that native title does not exist in relation to the land and waters in the State of New South Wales comprising Lot 89 in Deposited Plan 752038 (the application area). Metropolitan LALC holds a fee simple over the whole of the land comprising the application area.

2    The Respondents (the NSW Attorney-General and NTSCORP, respectively) have each filed a notice under s 86G of the Native Title Act 1993 (Cth) (NTA) stating that they neither consent to nor oppose orders in, or consistent with, the terms sought by Metropolitan LALC. The Court is therefore able to make this determination without a hearing (see NTA, s 86G(1)). The parties have requested that the application be dealt with on the papers.

3    For the reasons below, I am satisfied on the balance of probabilities that native title does not exist in the land and waters in the application area. The Court therefore makes the orders sought.

BACKGROUND

4    Applicant: Metropolitan LALC is a Local Aboriginal Land Council incorporated under the Aboriginal Land Rights Act 1983 (NSW) (NSW ALRA). On 10 May 2024, it made a non-claimant native title application under s 61(1) of the NTA. A title search attached to that application shows that Metropolitan LALC is the registered owner of the whole of the land comprising the application area. The land was transferred by the State to Metropolitan LALC under s 36 of the NSW ALRA on 8 April 2021.

5    Metropolitan LALC seeks this declaration, because its current and future ability to deal with the land in the application area is restricted by the NSW ALRA. By s 36(9) of that Act, Metropolitan LALC has an estate of fee simple in land transferred to it under s 36, subject to any existing native title rights. By s 42(1), Metropolitan LALC must not deal with this land unless the land is subject to an “approved determination of native title” under the NTA.

6    Respondents: The NSW Attorney-General is a party to these proceedings by reason of s 84(4) of the NTA. A State Minister has a role in native title proceedings in the capacity of parens patriae “to look after the interests of the community generally”: see Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936; (2019) 373 ALR 667 at [8] (Perry J).

7    NTSCORP is funded under s 203FE(1) of the NTA for the purpose of performing the functions of the native title representative body for New South Wales and the Australian Capital Territory. NTSCORP applied to be joined as a party to this proceeding on 23 August 2024, and was joined as a respondent on 17 October 2024, by an order of a Registrar made under s 84(3) of the NTA.

8    Evidence: The parties have filed the following evidence.

    An affidavit of Mr Christopher Turner affirmed on 10 January 2025 (Turner affidavit), filed on behalf of Metropolitan LALC.

    An affidavit of Ms Tatiana Ramos sworn on 21 February 2025 (Ramos affidavit), filed on behalf of the NSW Attorney-General.

    An affidavit of Ms Rachel Jenkins affirmed on 7 March 2025 (Jenkins affidavit), filed on behalf of NTSCORP.

conditions for making a non-claimant native title determination

9    The statutory conditions for making a non-claimant native title determination are as follows.

10    Approved determinations of native title (NTA s 13): An application may be made to this Court under Pt 3 of the NTA for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a)).

11    Native title determination applications (NTA s 61(1)): By s 61(1) of the NTA, a “native title determination application” may be made by (relevantly) “[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”. An “interest” is defined in s 253 to include, in relation to land or waters, “a legal or equitable estate or interest in the land or waters”.

    An application must be made in the prescribed form (s 61(5)(a)); that is, Form 2 as set out in the Schedule to the Native Title (Federal Court) Regulations 1998 (Cth) (see reg 5(1)(b)).

    By s 94A, an order in which this Court makes a determination of native title must set out the details of the matters mentioned in s 225. By s 225, a “determination of native title” is a determination whether or not native title exists in relation to a particular area of land or waters (the “determination area”) and, if it does, a determination of the matters set out in s 225(a) to (e).

12    Notification by Native Title Registrar (NTA ss 63, 66): A copy of an application filed in this Court under s 61 must be given to the Native Title Registrar as soon as practicable (s 63). The Registrar then provides copies and gives notice of the application in accordance with s 66.

    The Registrar must give a copy of the application (and any other documents provided to the Registrar) to the State (or Territory) Minister for the State (or Territory) in which the application area is located, and to the representative body or bodies for the application area (s 66(2) and (2A)).

    The Registrar must also give notice containing details of the application to the persons and bodies specified in s 66(3)(a), and “notify the public in the determined way of the application” (s 66(3)(d)).

    By s 66(8), a notice under s 66(3)(a) or (d) must specify a day as the “notification day” for the application, which must be the same day for each notice in relation to the application (s 66(8)).

    By s 66(10), a notice under s 66(3)(a) or (d) must also include a statement to the effect that:

(a)    in the case of a non-claimant application [defined in s 253, which this proceeding is]—the area covered by the application may be subject to [s] 24FA protection unless, at the end of the period of 3 months starting on the notification day (as defined in [s 66](8)), the area is covered by a relevant native title claim (as defined in [s] 24FE); and

(b)    in the case of any native title determination application—as there can be only one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Federal Court, in making its determination, to take into account the person’s native title rights and interests in relation to the area concerned; and

(c)    in any case—a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day (as defined in [s 66](8)), or, after that period, get the leave of the Federal Court under [s] 84(5) to become a party.

Of these, the 3-month period required by s 66(10)(c) is especially significant.

13    Requirements for public notification: The Native Title (Notices) Determination 2011 (No 1) (Cth) sets out the determined way of notifying the public of an application for the purposes of s 66(3)(d) of the NTA. (The Notices Determination 2011 has since been repealed by the Native Title (Notices) Determination 2024 (Cth); however, that repeal occurred from 1 October 2024, after the relevant notices were given in this case.)

    By cl 6(1), notice under (relevantly) s 66(3)(d) must be published (a) by advertisement in 1 or more newspapers that circulate generally throughout the area to which the notice relates; and (b) in a “relevant special-interest publication” (defined in cl 4).

    By cl 6(5), notice under (relevantly) s 66(3)(d) must include:

(a)    details of the application; and

(b)    a clear description of the area to which the application relates; and

(c)    a statement of how further information about the application can be obtained.

“Clear description” is defined in cl 4 to mean a description of the area that contains enough information, whether by map drawn to scale or description by other means, to work out: (a) the general location of the area; and (b) the approximate boundaries of the area.

    By cl 9, a notice placed in a publication must be published in a print size at least as large as that used for most of the editorial content of the publication.

14    Only one determination of native title per area (NTA s 68): By s 68, if there is an approved determination of native title in relation to a particular area, this Court must not conduct any proceeding relating to an application for another determination of native title or make any other determination of native title in relation to that area, except for an application to revoke or vary the first determination or a review or appeal of that determination.

Consideration

A.    Jurisdiction and standing

15    The Court has jurisdiction to hear and determine the application under s 81 of the NTA. Metropolitan LALC, as the holder of an estate in fee simple over the land which comprises the application area, 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 determination is sought.

B.    Conditions for making a determination that native title does not exist

16    The formal statutory conditions for making an approved determination that no native title exists in the application area (set out above) can be summarised as follows:

(1)    the application has been notified in accordance with s 66 of the NTA;

(2)    the application area is not covered by an application for a determination that native title does exist;

(3)    the prescribed notification period under s 66(10)(c) has come to an end; and

(4)    an order in, or consistent with, the terms sought by the Applicant is within the Court’s power.

See Mudgee Local Aboriginal Land Council v Attorney-General (NSW) [2013] FCA 668 at [8] (Jagot J); Tweed Byron at [14].

17    For the following reasons, I am satisfied that those conditions are satisfied.

18    Notification in accordance with s 66: The evidence in the Turner affidavit indicates that the notification requirements in s 66 of the NTA have been satisfied in this case.

    Copy provided to the State and NTSCORP: On 16 May 2024, the Registrar’s office informed Metropolitan LALC that the Registrar had given a copy of the application and accompanying documents to the State of New South Wales and to the representative body(s) for the area covered by the application (see NTA s 66(2) and (2A)).

    Notice given to required persons and bodies (s 66(3)(a) to (c)): On 26 June 2024, the Registrar’s office informed Metropolitan LALC that the Registrar had given notice containing details of the application to persons and bodies in accordance with s 66(3)(a) to (c) of the NTA, and that the application would be publicly notified in the Sydney Morning Herald and Koori Mail on 3 July 2024. This letter contained a copy of the notice, and a list of the persons and bodies who had been given notice (which included NTSCORP, the representative body for the area).

    Public notification (s 66(3)(d)): On 3 July 2024, notice of the application was published in the Sydney Morning Herald and Koori Mail (see NTA s 66(3)(d); Notices Determination 2011 cl 6(1)). That notice contained details of the application (see Notices Determination 2011 cl 6(5)(a)); and stated (among other things) that the notification day was 17 July 2024 (see NTA s 66(8)), and that, if someone wanted to become a party, they must file a notice of intention to become a party with this Court on or before 16 October 2024 (see NTA s 66(10)(c)). The land covered by the application was identified by Lot and Deposited Plan number, and the notice included a map and an approximation of the area covered by the application (see Notices Determination 2011 cl 6(5)(b)). I am therefore satisfied that the notice contained a “clear description” of the application area. Finally, the notice contained a name and phone number, and a website, for obtaining further information about the application (see Notices Determination 2011 cl 6(5)(c)).

    No other applications for native title determination: On 23 October 2024, the Registrar’s office informed Metropolitan LALC that the notification period had closed on 16 October 2024, and that a search of the Register of Native Title Claims conducted on 23 October 2024 shows that there are no relevant entries on the Register that fall within the external boundaries of the application area.

19    No overlapping native title determinations or applications: The Turner affidavit establishes that the application area is not covered by an existing native title determination, nor is there any current native title determination application that applies to the application area.

    As noted, the Registrar’s office advised in October 2024 that a search of the Register shows that there are no relevant entries that fall within the external boundaries of the application area.

    A historical search of native title determination applications shows that an application was made in 1998 on behalf of the Boongary Clan of the Taurai People (in Federal Court proceedings NSD6097/1998). That application was discontinued in June 2000. The “registration history” set out in the extract states that the claim was registered from 1 April 1998 to 1 December 1999, but also that the “registration decision status” was “Not Accepted for registration”. A map created by Mr Turner indicates that the application area in this proceeding comes within the application area of that discontinued proceeding.

20    The Ramos affidavit indicates that there were other native title compensation applications that relate to the application area (in Federal Court proceedings NSD6175/1998, NSD6176/1998, NSD6177/1998 and NSD6179/1998). Each of these proceedings was discontinued on 23 March 1999.

21    Notification period has ended (s 66(10)(c)): I am satisfied that the prescribed notification period for the purposes of s 66(10)(c) of the NTA has come to an end. The notice published in the Sydney Morning Herald and Koori Mail stated that the notification day began on 17 July 2024, and ended on 16 October 2024. Only NTSCORP has sought to be joined to this proceeding.

22    Order is within the Court’s power: Finally, I am also satisfied that the Court has power to make the order sought. The power to make a determination “whether or not native title exists” (cf NTA s 225) includes a power to determine that native title does not exist. This application is not moot, because the provisions of the NSW ALRA summarised in [5] above mean that Metropolitan LALC cannot deal with the relevant land until the existence or non-existence of native title is determined: see, for example, Tweed Byron at [16]-[17], and the cases cited.

23    I note that the NSW Attorney-General expressly accepts that the formal conditions for a non-claimant application have been satisfied in this case. NTSCORP appears to accept this point implicitly, in submitting that the Court has power to make the orders sought.

C.    Has Metropolitan LALC established that no native title exists?

24    The remaining precondition is therefore whether the evidence establishes on the balance of probabilities that no native title exists in the land. Even if all the preconditions to making an order are met, there is a final question whether it is appropriate to make the order: see Mace v State of Queensland [2019] FCAFC 233; (2019) 274 FCR 41 at [73] (the Court).

25    General principles: The onus of establishing that no native title exists lies upon the applicant (here, Metropolitan LALC): see, for example, CG v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 (Badimia FC) at [77] (North, Mansfield, Jagot and Mortimer JJ); Deerubbin Local Aboriginal Land Council v Attorney-General of New South Wales [2023] FCA 813 at [19] (Raper J), and the cases cited. In addressing this question, the Court must bear in mind that a determination that no native title exists has force and effect as against the whole world and, by virtue of s 61(1) of the NTA, may be varied relevantly only upon application by the Commonwealth, relevant State Minister, or the Registrar, upon the limited grounds prescribed by s 13(5) of the NTA: Badimia FC at [48], [66]; Mace at [66]-[67] (the Court).

26    There are two bases upon which the Court may be satisfied that native title does not exist in relation to land the subject of a non-claimant application:

(a)    first, native title does not presently exist because it is not claimed by or cannot be proved by a native title claimant (see, for example, Gandangara Local Aboriginal Land Council v Minister for Lands (NSW) [2011] FCA 383 at [8]-[10] (Perram J)); or

(b)    second, native title has been extinguished by prior acts of the Crown.

See Deerubbin Aboriginal Land Council v Attorney-General (NSW) [2017] FCA 1067 at [48] (Griffiths J); Woromi Local Aboriginal Land Council v Attorney-General of New South Wales [2019] FCA 1270 at [21] (Jagot J); Tweed Byron at [20].

27    In this case, Metropolitan LALC relies on the first basis: that is, it does not positively contend that native title over land in the application area has been extinguished.

28    Approach to fact-finding: The proper approach to fact-finding in non-claimant native title applications, and the implications in this regard of the Full Court decision in Mace, was summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney-General of New South Wales [2020] FCA 1113 at [10] and by the Full Court in North Queensland Land Council Native Title Representative Body Aboriginal Corporation (ICN 1996) v Harris [2025] FCAFC 70 at [9] (the Court). I emphasise the following propositions:

(1)    The question of whether native title does or does not exist is to be decided according to the balance of probabilities.

(a)    This question is the same for claimant and non-claimant applications, and whether or not there is a contradictor. An Aboriginal Land Council under the NSW ALRA is in the same position as any other non-claimant applicant.

(b)    It is inappropriate to adopt evidentiary or adversarial presumptions that were developed by the common law in very different contexts. The overriding proposition is that each case must be assessed on its own facts.

(c)    At the same time, in a non-claimant application the Court takes account of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise protected by the NTA.

Wagonga at [10] (propositions (1), (3)-(4), (7), (10)-(14), (16)); Harris at [9] (points (1)-(3), (5)-(6), (11)).

(2)    Relevant considerations 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: Wagonga at [10] (proposition (5)); see also Harris at [9] (points (9) and (10)).

(3)    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. The principal evidence that is likely to impede the grant of a negative determination is evidence of an assertion of native title in the relevant land which is objectively arguable, not evidence of the potential for the assertion of native title: Wagonga at [10] (propositions (8) and (17)); see also Harris at [9] (point (4)).

29    Evidence in this case: Metropolitan LALC relies on the following evidence in contending that the Court should find that native title does not exist in relation to the land and waters in the application area.

30    Applicant’s evidence: Metropolitan LALC contends that it is sufficient that native title is not claimed or otherwise asserted in relation to the application area, in the context where: notice of this application has been notified in accordance with the NTA (and no native title claimant has sought to be joined); and a previous native title application in relation to an area that includes the application area was discontinued in 2001: see [18]-[19] above. (In addition, the NSW Attorney-General’s evidence establishes that native title compensation applications were discontinued in 1999: see [20] above.)

31    Metropolitan LALC refers additionally to the following matters (referring to Wagonga at [421](3)):

(1)    A search of the Aboriginal Heritage Information Management System Web Service for the Lot comprising the application area states that zero Aboriginal sites have been recorded on that web service within 50 metres of the application area.

(2)    The application area is in an area that has been the subject of significant residential development.

(3)    The application area is immediately adjacent to a significant area of land owned by Metropolitan LALC that is not subject to native title.

32    Of these, I accept that the presence of Aboriginal sites is potentially relevant, in the sense that it would increase the likelihood of native title existing in relation to land if that or adjacent land contained Aboriginal sites. However, I also accept the submission of NTSCORP that Aboriginal heritage and native title are distinct concepts, so the absence of Aboriginal sites is not determinative of whether native title exists in relation to an area.

33    By contrast, the other two matters in [31] above appear to go to the issue of extinguishment of native title, which is not a matter raised by this application. I note that, in Wagonga, native title was being claimed by a claimant group (Wagonga at [3], [7]-[8]), whereas the argument here is that no native title group is claiming native title over the application area. NTSCORP urges this Court not to go any further in its findings than is necessary to determine the application. It is not necessary to rely on these two matters.

34    Additional notification by NTSCORP: The Jenkins affidavit indicates that NTSCORP undertook notifications that went beyond the steps required by s 66 of the NTA. NTSCORP identified two people on its database as persons who may assert or hold native title rights and interests in relation to the application area. On 20 August 2024, NTSCORP notified these persons by email of this non-claimant application. The evidence is that NTSCORP did not receive any requests for facilitation and assistance in relation to the application area.

35    This evidence provides additional support for an inference that any persons who would claim native title over the land and waters in the application area have been informed of this application, and have not sought to be joined as a party to this proceeding as a native title claimant. That increases the likelihood that native title does not presently exist in the application area because it is not claimed by or cannot be proved by a native title claimant: see [26](a) above. The Court gives appropriate weight to the aspects of the statutory scheme “which are designed to have people bring forward all claims to native title over an area”: Mace at [57]; Harris at [9](7).

36    Limits on evidence: Although NTSCORP does not oppose the orders being sought by Metropolitan LALC, its submissions point out the limits on the evidence before the Court.

    First, NTSCORP submits that non-response to the public notification under s 66 of the NTA is not necessarily a reliable indicator that there are no persons or groups who assert native title in the application area, because the notification is based on newspapers not social media (referring to Mace at [92]-[94]).

    Second, NTSCORP submits that non-response by the two people who were identified by NTSCORP does not necessarily conclude whether there are any persons who assert native title in relation to the application area. NTSCORP notes that no anthropological report has been prepared by or on behalf of NTSCORP in relation to land covering the application area.

37    Conclusions on evidence: These limits, although real, do not prevent the Court from being able to reach a conclusion on the balance of probabilities that native title does not exist in relation to the application area. I am conscious of the permanent effect of a determination in rem that native title does not exist in the application area. However, it is better to focus on what the evidence before the Court does establish. The Court looks particularly at whether there is evidence of assertion of native title that is objectively arguable, not merely a potential for the assertion of native title: Mace at [56], [97]; Wagonga at [10] (propositions (9) and (17)). On the other hand, that is not to say that a non-claimant application must always succeed unless there is objectively arguable evidence: Harris at [11].

38    In this case, as in Mace, if those who brought the earlier native title proceedings have not come forward after the statutory notification process that has occurred (as supplemented by NTSCORP), it is reasonable to infer that those people no longer assert native title continues to exist in the area claimed in this non-claimant application. The situation at the time this non-claimant application falls to be decided is that there are no persons or groups who assert native title rights and interests in the claimed land: Mace at [165], [164]; see Harris at [26], [28]. I am satisfied that these orders are appropriate in the circumstances of this case: see Mace at [73].

conclusion

39    This is an unopposed non-claimant application. I am satisfied that the procedural conditions for making the determination have been met. Having regard to the evidence, submissions, and relevant principles, I am satisfied on the balance of probabilities that no native title claims exist in the application area. I am satisfied the order sought is within this Court’s power, and that it is appropriate to make the determination in the terms sought by Metropolitan LALC.

40    Metropolitan LALC also seeks an order that there be no order as to costs. Although that order is sometimes made in proceedings of this sort, s 85A of the NTA provides that, unless this Court orders otherwise, each party to a proceeding must bear its own costs. It does not seem necessary to make this order.

Associate:

Dated:    13 June 2025