Federal Court of Australia

Eden Local Aboriginal Land Council v Attorney General of New South Wales [2025] FCA 688

ORDERS

THE COURT ORDERS THAT:

1. There be a determination of native title in the terms set out below (Determination).

2. The application be discontinued to the extent that it covers any land or waters within:

(a) the part of Lot 65 in Deposited Plan 1040135 which was previously Portion 58 in the County of Auckland, Parish of Kiah and the subject of Special Lease 1903-4 Eden for the purposes of wattle-growing, agriculture and grazing as depicted in Map 1 of Schedule 1 to the Determination;

(b) the part of Lot 67 in Deposited Plan 1040135 which was previously Portion 50 in County of Auckland, Parish of Kiah as depicted in Map 1 of Schedule 1 to the Determination; and

(c) the part of Lot 67 in Deposited Plan 1040135 which was previously subject to Special Lease 1899-2 Eden for the purpose of fishery, and later, saw-mill and erection of buildings as depicted in Map 1 of Schedule 1 to the Determination.

3. Each party to the proceeding bear its own costs.

BY CONSENT THE COURT DETERMINES THAT:

1. Pursuant to s 86G of the Native Title Act 1993 (Cth), 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 17 in Deposited Plan 750213;

(b) Lot 18 in Deposited Plan 750213;

(c) Lot 68 in Deposited Plan 1040135;

(d) that part of Lot 65 in Deposited Plan 1040135 which was previously Portion 57 in the County of Auckland, Parish of Kiah, the subject of Special Lease 1902-15 Eden for the purpose of agriculture, as depicted in Map 2 of Schedule 1; and

(e) that part of Lot 65 in Deposited Plan 1040135 which was formerly subject to Special Lease 1909-5 Eden for the purposes of residence and wattle-growing, as depicted in Map 2 of Schedule 1.

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

Schedule 1

Map 1 – Areas in relation to which action NSD 31 of 2024 is discontinued

Map 2 – Determination area

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1 On 9 January 2024, the applicant, Eden Local Aboriginal Land Council (Eden LALC), filed a non-claimant application seeking a determination under s 61(1) of the Native Title Act 1993 (Cth) that native title does not exist in relation to certain land and waters in New South Wales.

2 The area that is the subject of the non-claimant application is comprised in and known as Lots 17 and 18 in Deposited Plan (DP) 750213 (Lots 17 and 18), Lot 68 in DP 1040135 (Lot 68), parts of Lot 65 in DP 1040135 (Lot 65), and parts of Lot 67 in DP 1040135 (Lot 67), located in the County of Auckland, Parish of Kiah.

3 Eden LALC is a Local Aboriginal Land Council incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). Eden LALC is the registered proprietor of each of Lots 17 and 18, 65, 67 and 68. It holds an estate in fee simple in these areas, subject to any existing native title rights, pursuant to s 36(9) of the ALR Act. However, Eden LALC is prevented from dealing with any of that land (in the sense defined by s 40 of the ALR Act) unless the land is the subject of an approved determination of native title: ALR Act, s 42.

4 The respondents to these proceedings are the Attorney-General of New South Wales (Attorney-General) and NTSCORP Ltd (NTSCORP). NTSCORP was joined as the second respondent on its own application.

Procedural background

5 In its application filed on 9 January 2024, and in Attachment A to its written submissions filed on 17 October 2024, Eden LALC sought a determination that native title does not exist in relation to an area of land and waters in New South Wales comprising:

(a) Lots 17 and 18;

(b) Lot 68;

(c) those parts of Lot 65 which respectively were:

(i) previously Portion 57 in the County of Auckland, Parish of Kiah, the subject of Special Lease 1902-15 Eden for agriculture;

(ii) previously Portion 58 in the County of Auckland, Parish of Kiah, the subject of Special Lease 1903-4 Eden for wattle-growing, agriculture and grazing; and

(iii) subject to Special Lease 1909-5 Eden for residence and wattle-growing; and

(d) that part of Lot 67 which was previously Portion 50 in the County of Auckland, Parish of Kiah, and the subject of Special Lease 1899-2 Eden for fishery, and later, saw-mill and erection of buildings.

6 Following the filing of written submissions by the Attorney-General on 15 November 2024 and by NTSCORP on 29 November 2024, it became evident that the parties were not in agreement about whether, or if so on what basis, native title had been wholly extinguished in relation to the areas described at [5(c)(ii)] and [5(d)] above.

7 The respondents agreed with Eden LALC that any native title that existed had been extinguished in relation to the remaining areas the subject of Eden LALC’s application. The remaining land, in respect of which the parties agree that native title has been wholly extinguished, comprises:

(a) Lots 17 and 18;

(b) Lot 68; and

(c) those parts of Lot 65 which respectively were:

(i) previously Portion 57 in the County of Auckland, Parish of Kiah, the subject of Special Lease 1902-15 Eden for agriculture; and

(ii) subject to Special Lease 1909-5 Eden for residence and wattle-growing,

(Application Area).

8 In its written submissions in reply filed on 29 January 2025, Eden LALC indicated that, in the circumstances, it considered it appropriate to discontinue its application insofar as it encompassed the areas described at [5(c)(ii)] and [5(d)] above, and that it proposed to do so immediately before a determination was made by the Court. The orders which Eden LALC now seeks include an order that the application be discontinued to the extent that it covers any land or waters within the areas referred to at [5(c)(ii)] and [5(d)] above. In light of the position of the parties, it is appropriate to make that order. Consequently, references to the Application Area exclude those areas and it is unnecessary to say more about them.

9 On 7 February 2025, the respondents each filed a notice pursuant to s 86G of the Native Title Act. Both the Attorney-General and NTSCORP have indicated that they do not oppose orders in, or consistent with, the terms of the orders now sought by Eden LALC.

Material before the Court

10 Eden LALC relies upon its originating application filed on 9 January 2024, its written submissions filed on 17 October 2024 and its written submissions in reply filed on 29 January 2025, as well as the following evidentiary material:

(a) affidavit of Wayne Antony George Shipp affirmed on 9 January 2024, annexing a copy of title searches conducted in relation to the Application Area; and

(b) affidavit of Christopher Malcolm Turner affirmed on 10 October 2024, annexing:

(i) copies of letters from the National Native Title Tribunal (NNTT) to the applicant’s legal representatives at the law firm Chalk & Behrendt dated 23 January, 21 February, 6 March and 3 July 2024;

(ii) a copy of an email chain between the NNTT and the applicant’s legal representatives dated 21 to 28 February 2024;

(iii) copies of notices published in the digital edition of the Koori Mail on 28 February and 13 March 2024;

(iv) copies of notices published in the digital edition of the Eden Magnet on 29 February and 14 March 2024;

(v) a screenshot of the ComCourts Portal record for the application as at 30 September 2024;

(vi) an overlap analysis report prepared by the NNTT;

(vii) a search report of the NNTT’s determination database;

(viii) a screenshot of the terms and conditions of the Current and Historical Native Title Determination Applications mapping program as at 30 September 2024;

(ix) a copy of a map of the Twofold Bay claim application area created using the Historical Native Title Determination Applications mapping program as at 30 September 2024;

(x) an extract from the National Native Title Register in relation to the Twofold Bay claim;

(xi) a copy of the Federal Law Search record for the Twofold Bay claim;

(xii) a copy of an extract from the Twofold Bay Indigenous Land Use Agreement;

(xiii) copies of the New South Wales Government Gazette dated 28 August 1894, 26 November 1895, 14 April 1897, and 22 September 1891;

(xiv) copies of pages from the Old System Grant Index for the period 1839-47;

(xv) a copy of the Supplementary Grant Index for serial number 76; and

(xvi) a copy of Crown Plan 1305-3040.

11 The Attorney-General relies on an affidavit of Sylvia Ruth Hart affirmed on 15 November 2024, his written submissions filed on 15 November 2024, and his additional written submissions filed on 7 February 2025. NTSCORP relies on its written submissions filed on 29 November 2024.

Statutory Framework

12 Section 13(1)(a) of the Native Title Act provides that an application may be made to the Court for a determination of native title in relation to an area for which there does not exist an approved determination of native title. Section 225 of the Native Title Act defines a “determination of native title” as “a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters”.

13 “Native title” is defined in s 223(1) of the Native Title Act as follows:

223 Native title

Common law rights and interests

(1)     The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a)     the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b)     the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c)     the rights and interests are recognised by the common law of Australia.

14 A person may make an application under s 13(1) if they hold “a non-native title interest in relation to the whole of the area in relation to which the determination is sought”: Native Title Act, s 61(1). Eden LALC meets this description by virtue of being the registered proprietor of each of Lots 17 and 18, 65, 67 and 68.

Notification under s 66 of the Native Title Act

15 In accordance with the notification requirement in s 66(3)(d) of the Native Title Act, the NNTT, on behalf of the Native Title Registrar, informed Eden LALC that the notification period for the application was to commence on 27 March 2024 and that public notice of the application would be published in the Koori Mail and the Eden Magnet on 13 and 14 March 2024, respectively. The notices, which set out the notification period for the application, being 27 March to 26 June 2024, were published on the specified dates.

16 In further compliance with s 66 of the Native Title Act, the NNTT provided a copy of the application to the respondents (on two occasions), and gave notice to the Commonwealth Minister, Eden Shire Council, the native title division at King & Wood Mallesons, TransGrid, New South Wales Aboriginal Land Council, the Court and the New South Wales Department of Planning, Industry and Environment.

Section 86G of the Native Title Act

17 The Court may make a native title determination without holding a hearing in circumstances where an application for such a determination is unopposed and the notification period has ended: Native Title Act, s 86G. More specifically, s 86G provides:

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.

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.

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).

18 Regardless of whether a non-claimant application is contested or opposed, the relevant question for the Court is whether the applicant has “discharged its burden of proof that no native title exists in the claim area”: Mace v Queensland (2019) 274 FCR 41; [2019] FCAFC 233 (Mace) at 50 [44]; Awabakal Local Aboriginal Land Council v Attorney-General (NSW) [2025] FCA 609 at [27]. The applicant bears the onus of proof on the balance of probabilities: Mace at 51 [54]. It is not necessary, in order to discharge that onus, for the applicant to disprove each of the elements that must be proven for a claimant application to succeed: Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (No 2) (2008) 181 FCR 300; [2008] FCA 1929 at 313 [61].

19 An applicant may prove that native title does not exist in relation to an area the subject of a non-claimant application by establishing either of the following:

(a) that no native title exists in the area because it is not claimed or cannot be proven by a native title claimant; or

(b) that any native title that may have existed over the area has been extinguished.

See Mace at 50 [49]; Worimi Local Aboriginal Land Council v Attorney-General (NSW) [2018] FCA 1329 at [97]-[98]; Deerubbin Aboriginal Land Council v Attorney-General (NSW) [2017] FCA 1067 at [48]; Gandangara Local Aboriginal Land Council v Attorney-General (NSW) [2013] FCA 646 at [64]-[65].

20 In determining whether an applicant has discharged its burden of proof in a non-claimant application, each case will depend, and must be assessed, on its own particular facts: Mace at 50 [47]-[48].

Consideration

Does the Court have the power to make the orders sought?

21 As already indicated at [14] above, Eden LALC has standing to make this application by virtue of being the registered proprietor of Lots 17 and 18, 65, 67 and 68. The Court has jurisdiction to hear and determine the application pursuant to s 81 of the Native Title Act.

22 I am satisfied that the Court has the power to make orders in, or consistent with, the terms sought, pursuant to s 86G(1)(b), as each of the following statutory requirements is met:

(a) each of the respondents to the application has notified the Court that the orders sought are unopposed, as required by s 86G(1)(a) and (2) of the Native Title Act;

(b) as set out at [15]-[16] above, the notification requirements under s 66 of the Native Title Act have been met;

(c) the notification period has ended, as required by s 86G(1);

(d) there are no existing native title determinations in relation to any part of the Application Area, as required by s 13(1)(a); and

(e) the orders sought comply with ss 94A and 225 of the Native Title Act.

Is it appropriate for the Court to make the orders sought?

23 Eden LALC submits that it is appropriate for the Court to make the orders sought because any native title that may have previously existed over the Application Area has been extinguished by one or more previous exclusive possession acts (PEPAs) attributable to the State of New South Wales, within the meaning of s 23B of the Native Title Act. The respondents agree with this submission.

24 For the reasons that follow, I am satisfied that Eden LALC has discharged its burden of proof and that it is appropriate for the Court to make the orders it has proposed.

25 Section 23B(2) of the Native Title Act provides:

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

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

Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

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

(c)     it consists of the grant or vesting of any of the following:

(i)     a Scheduled interest (see section 249C);

(ii)     a freehold estate;

(iii)     a commercial lease that is neither an agricultural lease nor a pastoral lease;

(iv)     an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

(v)     a residential lease;

(vi)     a community purposes lease (see section 249A);

(vii)     what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;

(viii)     any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

26 “Scheduled interest” is defined in s 249C(1) of the Native Title Act as:

(a)     anything set out in Schedule 1, other than a mining lease or anything whose grant or vesting is covered by subsection 23B(9), (9A), (9B), (9C) or (10) (which provide that certain acts are not previous exclusive possession acts); or

(b)     an interest, in relation to land or waters, of a type declared by a regulation for the purposes of this paragraph to be a Scheduled interest.

27 Sections 23C and 23E of the Native Title Act respectively provide that native title is extinguished by PEPAs of the Commonwealth, and by PEPAs of a State or Territory. Section 20 of the Native Title (New South Wales) Act 1994 (NSW), read together with ss 23C and 23E of the Native Title Act, confirm that PEPAs extinguish native title rights and interests, and the extinguishment is taken to have occurred when the relevant act was done.

28 Part 1 of Schedule 1 to the Native Title Act identifies interests in relation to lands and waters that are Scheduled interests in New South Wales. They include a special lease under s 90 of the Crown Lands Act 1884 (NSW) (CL Act) that permits the lessee to use the land or waters covered by the lease solely or primarily for various purposes listed in cl 2(3) of Schedule 1. Those purposes relevantly include “agriculture”, “residence”, “saw-mill” and “wattle growing”. A special lease under ss 75 or 75B of the Crown Lands Consolidation Act 1913 (NSW) (CLC Act) that permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes listed in cl 3(8) is also a Scheduled interest. The relevant purposes under cl 3(8) are “agriculture” and “agriculture (or any similar purpose) and grazing combined”.

29 Once native title is extinguished over an area of land or waters, the native title rights and interests cannot be revived, even if the act that resulted in the extinguishment no longer has effect: Native Title Act, s 237A.

Lots 17 and 18

30 Lots 17 and 18 comprise land which was previously recognised as Portions 17 and 18 in the County of Auckland, Parish of Kiah, with similar boundaries to these portions, as depicted in Crown Plan 879-1978. Lots 17 and 18 were transferred to Eden LALC on 5 January 2010.

31 Historical Land Status Report 2471 shows that Portions 17 and 18 were subject to two special leases granted under Crown lands legislation in the early- to mid-twentieth century.

32 Special Lease 1922-4 Eden was granted under the CLC Act over Portion 18 on 4 January 1924 for the purposes of grazing and agriculture for the term 1 December 1923 to 31 December 1937, by notice in the New South Wales Government Gazette. The area comprising Portion 17 was added to this special lease on 10 December 1926. The term of Special Lease 1922-4 Eden was later extended to 31 December 1950.

33 Special Lease 1951-1 Bega was granted under the CLC Act over Portions 17 and 18 on 28 August 1953 for the purposes of grazing and agriculture for the term 1 January 1951 to 31 December 1960, by notice published in the New South Wales Government Gazette. It was extended on two occasions, first to 31 December 1978, and later to 31 December 1990.

34 Grazing and agriculture were declared to be relevant prescribed purposes under s 90 of the CL Act on 28 August 1894 and 26 November 1895, respectively. Consequently, they are valid purposes for which special leases could be granted under s 75 of the CLC Act: Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney-General (NSW) (2021) 390 ALR 187; [2021] FCA 169 at 375 [666]; Darkinjung Local Aboriginal Land Council v Attorney-General (NSW) [2022] FCA 1555 at [43].

35 In addition, “agriculture (or any similar purpose) and grazing combined” is a prescribed purpose under cl 3(8) of Schedule 1 to the Native Title Act: see also Leeton and District Local Aboriginal Land Council v Attorney-General (NSW) [2021] FCA 356 at [40]-[41].

36 I am therefore satisfied that Special Lease 1922-4 Eden and Special Lease 1951-1 Bega were validly granted under s 75 of the CLC Act. Accordingly, I am satisfied that the granting of these leases constituted a PEPA under s 23B(2) of the Native Title Act, with the effect that any native title has been extinguished over Lots 17 and 18.

Lot 68

37 Lot 68 was transferred to Eden LALC on 12 April 2002. It comprises of Portions 22 and 23 in the Parish of Kiah, County of Auckland, which were purchased by Benjamin Boyd on 16 August 1844.

38 In the 180 years since their purchase by Mr Boyd, Portions 22 and 23 were the subject of many purchases and transfers before Lot 68 was created upon registration of Deposited Plan 1040135 on 11 April 2002. Eden LALC has not traced the entire history of Portions 22 and 23 but has identified the most recent purchases and transfers.

39 The most recent prior title for Lot 68 was Certificate of Title Volume 11108 Folio 143 dated 1 October 1976, which comprised Portions 22 and 23. The certificate of title was created upon registration of transfer P858144, dated 27 August 1976, and recorded the New South Wales Planning and Environment Commission as the registered proprietor of Portions 22 and 23. Transfer P858144 records the transferors, Duncan’s Holdings Ltd and Australian Paper Manufacturers Ltd, as tenants in common. The transfer relates to the entirety of the land covered by Certificates of Title Volume 11108 Folio 143A and 143B.

40 Certificates of Title Volume 11108 Folio 143A and 143B were both created on 6 August 1969 and were cancelled upon the registration of transfer P858144. The first of these recorded Duncan’s Holdings Ltd as the registered proprietor of an “Estate in Fee Simple in an undivided one-half share in Portions 22 and 23”, and the second recorded Australian Paper Manufacturers Ltd as registered proprietor in substantially similar terms.

41 I am satisfied that the grant of Portions 22 and 23 to Mr Boyd in 1844 constituted a valid grant of a freehold estate that took place before 23 December 1996. The grant was a PEPA under s 23B of the Native Title Act and thus extinguished any native title over Lot 68.

Lot 65 (Portion 57)

42 The entirety of Lot 65 was transferred to Eden LALC on 12 April 2002.

43 Historical Land Status Report 2485 shows that Portion 57, which forms a part of Lot 65, was subject to Special Lease 1902-15 Eden. That special lease was granted on 24 October 1903 for the purpose of agriculture under the CL Act by notice in the New South Wales Government Gazette. It was forfeited on 19 October 1904 due to non-payment of rent.

44 An area that included Portion 57 was reserved from sale for the preservation and growth of timber on 24 March 1909. The reserve was revoked in 1914 when the area was dedicated as part of State Forest No 127, later known as East Boyd State Forest. That dedication was itself subsequently revoked upon the commencement of the Forestry and National Park Estate Act 1998 (NSW).

45 Special Lease 1902-15 Eden constitutes a Scheduled interest under the Native Title Act by reason of the fact that “agriculture” was an accepted purpose for the use of land for a special lease granted under the CL Act: Native Title Act, Schedule 1, cl 2(3).

46 I am satisfied that Special Lease 1902-15 Eden was validly granted and is a PEPA under s 23B of the Native Title Act. Any native title rights and interests have therefore been extinguished over those parts of Lot 65 that comprise Portion 57.

Lot 65 (Special Lease 1909-5 Eden)

47 Special Lease 1909-5 Eden was granted under the CL Act, over a part of Lot 65 on 10 May 1911, for the purpose of residence and wattle growing, by notice in the New South Wales Government Gazette. The term of the special lease was 1 May 1911 to 31 December 1924. The area covered by Special Lease 1909-5 Eden is identified in a map produced in Mr Turner’s affidavit at [29].

48 “Residence” and “wattle growing” are both specified purposes for a special lease granted under the CL Act, pursuant to cl 2(3) of Schedule 1 to the Native Title Act. Special Lease 1909-5 Eden is a Scheduled interest under s 249C(1) of the Native Title Act, and thus constitutes a PEPA under s 23B. I am therefore satisfied that any native title that would otherwise exist has been extinguished in relation to the parts of Lot 65 that are covered by Special Lease 1909-5 Eden.

Conclusion

49 Eden LALC seeks an order that native title does not exist in the Application Area so that it can “deal with” the land comprising the Application Area in a way that advances the objects and purposes of the ALR Act. This cannot be done unless there is an approved determination of native title: ALR Act, s 42. No factors have been identified, or emerge on the evidence, that would suggest that it is inappropriate to make the orders sought: cf Mace at 65-6 [115]. In those circumstances, given that I am satisfied that Eden LALC has discharged its burden of proving that native title has been extinguished over the Application Area for the reasons explained above, it is appropriate to make the orders sought.

Associate:

Dated:    26 June 2025