FEDERAL COURT OF AUSTRALIA

Hay Local Aboriginal Land Council v Attorney General of New South Wales [2025] FCA 1581

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 13(1) of the Native Title Act 1993 (Cth), no native title exists in relation to the land and waters described as Lot 1 on Deposited Plan 1291064, being the land at street address 159 Pine Street, Hay, NSW 2711, located in central New South Wales.

2.    Each party to the proceedings bear their own costs.

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

REASONS FOR JUDGMENT

RAPER J:

1    The applicant, Hay Local Aboriginal Land Council (Hay LALC), a Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983 (NSW) seeks a determination, pursuant to ss 13(1) and 61(1) of the Native Title Act 1993 (Cth), that no native title exists in relation to the land and waters described as Lot 1 on Deposited Plan 1291064, being the land at street address 159 Pine Street, Hay, (the Land and Application Area) located in the western Riverina region of south-western New South Wales.

2    The Land is the site of a former residence of the Hay Court House caretaker, sheriff officer, or clerk adjacent to the Hay Court House which was constructed or established by the New South Wales Department of Public Works around 1898. Hay LALC submits that the residence and its yard spaces (comprising the entirety of the Land) are themselves the “public work” by which native title has been extinguished.

3    Hay LALC holds a non-native title interest in relation to the Land, being an interest in fee simple. The title folio for the Land shows that Hay LALC is the registered proprietor of the Land: Exhibit BJT-1 at 31. The Land was transferred to Hay LALC by the State of New South Wales on 17 March 2023. Pursuant to s 36(9) of the ALR Act, the Land was transferred to Hay LALC subject to any native title rights and interests existing in the Land immediately before the transfer.

4    By operation of s 42 of the ALR Act, since transfer, the Land has been subject to a restriction that the Hay LALC must not “deal” with the Land unless it is the subject of an approved determination of native title. Hay LALC now wishes to “deal” with the Land (build an early childhood education centre on the Land) for the purposes of the ALR Act, but before doing so requires a determination under the NT Act that native title does or does not exist in the Land: see Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41 at [8]-[11]; Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210; 287 FCR 1 at [14].

5    Accordingly, the relevant issues requiring resolution are whether the Court has the power to make the orders sought by the Hay LALC and if so, whether it is appropriate for the Court to make them: Armidale Local Aboriginal Land Council v Attorney General of New South Wales [2024] FCA 50 at [18] per Shariff J.

6    For the reasons which follow, I am satisfied that the non-claimant application should be allowed, the negative determination sought by Hay LALC is within the power of the Court and it is appropriate to make that order.

Role of the Attorney General

7    The first respondent, the Attorney General of the State of New South Wales, by reason of the operation of s 84(4) of the NT Act, 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 NT Act. The State Minister’s role in proceedings of this kind has been recognised as being 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 of New South Wales [2019] FCA 936; 373 ALR 667 at [8] per Perry J in the context of a non-claimant application by an Aboriginal Land Council.

8    Neither the State Minister nor NTSCORP Limited oppose the orders sought by Hay LALC.

Disposition

9    Section 13(1) of the NT Act allows for 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.

10    Section 61 of the NT Act 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 NT Act 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”.

11    This Court has jurisdiction to hear and determine applications in relation to native title, pursuant to s 81 of the NT Act, 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.

12    Hay LALC 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 the State of New South Wales (No 2) [2008] FCA 1929; 181 FCR 300 at [88] per Bennett J, upheld on appeal in Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 at [53]–[60].

13    Regardless of whether a non-claimant application is opposed or unopposed, the Full Court in Mace 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 processes the Native Title Registrar is required to undertake which are dealt with below.

14    There are two ways in which an applicant can establish the negative, that native title does not exist: (1) that any native title that did exist has been extinguished: Gandangara Local Aboriginal Land Council v Attorney General of New South Wales [2013] FCA 646 at [19], [59]-[70] per Griffiths J; or (2) that no native title exists because it is either not claimed or cannot be proved by a native title claimant: Mace at [76] citing Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 at [48(a)] per Griffiths J.

15    In this case, Hay LALC takes the first course and submits that any native title that did exist over the Land has been extinguished. The authorities recognise that where the Court is satisfied native title has been extinguished, it is unnecessary for the Court to consider the second basis: Mace at [49] and Worimi at [58]-[59] per Moore, Mansfield and Perram JJ.

16    The relevant organising principles which inform the task of this Court were summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10]:

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

17    Hay LALC relied upon the following affidavits in support of its non-claimant application: the affidavits of Mr Brendan Tobin affirmed on 26 May 2025 and 8 August 2025; the affidavit of Ms Tara Dixon 26 May 2025; and the affidavit of Mr Nathan Campbell affirmed on 8 August 2025.

18    The evidence of the three deponents may be summarised as follows: Mr Tobin (solicitor) gives evidence as to Hay LALC’s 2015 claim under the ALR Act with respect to the Land, the subsequent grant in 2020 and transfer of the Land in 2023, and documenting extensive historical searches as to the Land from the late 1800s to the present which included, without being exhaustive, a Crown Lands Historical Land Search, Parish Maps, Trove Documents, copies of the Hay Shire Council Rate Books for the Land, plans for the creation of the Hay Court House, associated newspaper articles regarding tenders for works upon the Hay Court House and the Caretaker/Sheriff’s quarters from the late 1800s to the 1970s, and the results of numerous requests of State government agencies regarding the various buildings and their associated infrastructure. Mr Tobin’s second affidavit contained additional searches associated with the Hay Court House and the toilet block which is understood to have been situated at the back of the Land. Ms Dixon’s affidavit attaches a current day aerial map and photographs of all aspects of the Land. Mr Campbell is a former police officer who from approximately 1983 lived at the (presently unoccupied) house on the Land (the House) for two years. His affidavit describes the features of the House and all aspects of the Land and their uses as he recalls them, contrasting the current state (as depicted in Ms Dixon’s affidavit).

The relevant orders are within the Court’s power

19    Hay LALC holds a non-native title interest in relation to the Land, being an interest in fee simple. The title folio for the Land shows that Hay LALC is the registered proprietor of the Land: Exhibit BJT-1 at 31. As described above, the Land was transferred to Hay LALC by the State of New South Wales on 17 March 2023.

20    A search was conducted by the National Native Title Tribunal of the Native Title Registers. The search confirmed that there were no native title claims over the Application Area, save for the claim made by the Hay LALC (NN2024/012) and the subsequent partial approval, required under ss 13(1) and 61A(1) of the NT Act.

21    The Native Title Registrar is required to undertake a notification process in accordance with s 66 of the NT Act. 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 “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” 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    Pursuant to s 61(1) of the NT Act such a person may make a native title determination application under s 13(1): Armidale at [10]. “Interest” in relation to land or waters is defined in s 253 of the NT Act and includes “a legal… equitable”, “estate or interest” in the land or waters. I accept that Hay LALC has an interest in the Land by virtue of being the registered proprietor over the Land: s 253 of the NT Act.

23    I am satisfied that the application was made under s 61 and the period, specified in the notice under s 66, has expired: The notification period ended on 17 March 2025. I am satisfied that each of the persons and bodies required to be notified under s 66(3) of the NT Act have been notified and that the Notice was published in the Koori Mail and Hay Riverine Grazier on 4 December 2024. I am also satisfied that the Court has the power to make the order in the terms sought by Hay LALC.

24    The Registrar notified the legal representatives for the Hay LALC that a copy of the non-claimant application had been given to other listed individuals and entities, as required pursuant to ss 66(2A) and 66(3) of the NT Act.

25    I accept that the Registrar has satisfied the notification requirements under ss 63 and 66 of the NT Act. I am satisfied that no other parties (save for NTSCORP) sought to be joined as parties at the end of that period.

Hay LALC has established that no native title exists in relation to the Land

26    I am satisfied that Hay LALC has established, on the balance of probabilities, that no native title exists in relation to the Land because any native title has been extinguished for the following reasons.

The notable parts of the Land

27    It is worthwhile describing the notable features of the Land because, as the following will reveal, the parties’ arguments as to why there has been extinguishment of native title differ in relation to different parts of the Land.

28    The parcel of Land faces on to Pine Street, Hay, covers an area of approximately 1,079 square meters and is rectangular. Adjacent to the Land to the North, is the Hay Court House constructed in around 1892 and to the East, the Hay Police Station. Police buildings appear to have been situated on the site from at least November 1909.

29    The House and various Yard Spaces can be described as follows:

(a)    a fenced front yard with a path from the House to Pine Street: Annexures TD-11 and TD-12 to the Dixon Affidavit (the Front Yard);

(b)    a fenced outdoor patio, with a beige or light yellow metal fence, adjacent to the back of the House: Annexures TD-4 and TD-10 to the Dixon Affidavit (the Outdoor Patio);

(c)    a fenced backyard with a hills hoist clothesline: Annexures TD-5 and TD-9 to the Dixon Affidavit (the Back Yard);

(d)    a side yard to the North of the House connected to the outdoor patio by a path: Annexure TD-14 to the Dixon Affidavit (the North Side Yard);

(e)    a side yard to the South of the House with an opening to the fenced backyard: Annexure TD-15 to the Dixon Affidavit (the South Side Yard); and

(f)    a further fenced backyard area, behind the Fenced Back Yard, taking up approximately the Easternmost fifth of the Land: Annexures TD-6, TD-7 and TD-8 to the Dixon Affidavit (the Further Fenced-In Area).

Why the parties say that native title has been extinguished with respect to all parts of the Land

30    By reference to each part of the Land, the parties’ respective submissions as to why the Court may be satisfied that native title has been extinguished with respect to all parts of the Land can be summarised as follows:

(a)    as to the House, all parties agree that it is open for the Court to be satisfied that the House is a “public work” and a “previous exclusive possession act” for the purpose of s 23B of the NT Act;

(b)    as to the Land immediately around the House, comprising the Front Yard, the Outdoor Patio, the Back Yard, the North Side Yard and the South Side Yard:

(i)    the Court may be satisfied that the evidence establishes that those spaces form part of the public work and a previous exclusive possession act for the purpose of s 23B of the NT Act (as submitted by Hay LALC); or

(ii)    otherwise, those areas are necessary for, or incidental to, the operation of the House as a residence, by operation of s 251D of the NT Act (as submitted by the State Minister, NTSCORP and in the alternative by Hay LALC).

(c)    as to the Further Fenced-In Area, it is separated by a fence from the Backyard, its upkeep in the 1980s was maintained by the Court House gardener and there were public toilets situated in the area for use by offenders appearing at the Court House. The parties submit that the Court may be satisfied that:

(i)    the Further Fenced-in Area forms part of the public work being the House and a previous exclusive possession act for the purpose of s 23B of the NT Act (as submitted by Hay LALC as its primary contention);

(ii)    the Court House is a public work and a previous exclusive possession act for the purpose of s 23B of the NT Act of which the whole of the Further Fenced-In Area and the toilets form part (as submitted by the State Minister, NTSCORP and Hay LALC as their first alternative contention); and

(iii)    the Court House and/or the construction of the toilet block being public works, by operation of s 251D, the entirety of the footprint of the Further Fenced-In Area, is necessary or incidental to the operation of those public works (as submitted by the State Minister, NTSCORP and Hay LALC as their second alternative contention).

31    The relevant legislative provision concerned with an extinguishment of native title arising from a “previous exclusive possession act” is s 23B of the NT Act, which is set out as follows:

Previous exclusive possession act

(1) This section defines previous exclusive possession act.

Grant of freehold estates or certain leases etc. on or before 23.12.1996

(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.

Vesting of certain land or waters to be covered by paragraph (2)(c)

(3) If:

(a) by or under legislation of a State or a Territory, particular land or waters are vested in any person; and

(b) a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;

the vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters.

Construction of public works commencing on or before 23.12.1996

(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.

32    “Public Work”, referred to in s 23B(7)(b), is defined in s 253 of the NT Act as:

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

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

(ii) a road, railway or bridge; or

(iia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2 – a stock route; or

(iii) a well, or bore, for obtaining water; or

(iv) any major earthworks; or

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

33    Further, s 20(2) of the Native Title (New South Wales) Act 1994 (NSW) (New South Wales Native Title Act) provides that, if an act is a previous exclusive possession act under s 23B(7) of the NT Act and is attributable to the State, the act extinguishes native title in relation to, relevantly, the land on which the public work concerned was or is situated.

34    An act is “attributable to the State” if it meets the definition in s 239 of the NT Act. A note to s 7 of the New South Wales Native Title Act provides that “[a]n act attributable to the State is defined in sec 239 [of the NT Act]”. Section 239 of the NT Act provides:

An act is attributable to the Commonwealth, a State or a Territory if the act is done by:

(a)    the Crown in right of the Commonwealth, the State or the Territory; or

(b)    the Parliament or Legislative Assembly of the Commonwealth, the State or the Territory; or

(c)    any person under a law of the Commonwealth, the State or the Territory.

35    Finally, s 251D of the NT Act extends references to “land…on which a public work is constructed, established or situated” to “any adjacent land…the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work”.

What were the relevant acts leading to extinguishment?

36    Here Hay LALC contends, by reason of s 23B(7)(b), the construction or erection of the House constructed in around 1898 was a public work for the purpose of s 23B(7), being a building constructed or established by or on behalf of the Crown, or constructed with the authority of the Crown, which commenced to be constructed or established before 23 December 1996. Alternatively, Hay LALC contends that the construction of the Court House provides an alternative act leading to extinguishment of native title over the entire Land.

The House is a public work within the meaning of s 23B(7)

37    Hay LALC submits that the evidence establishes that the House constructed in around 1898 was a public work for the purpose of s 23B(7), being a building constructed or established by or on behalf of the Crown, or constructed with the authority of the Crown, which commenced to be constructed or established before 23 December 1996.

38    Mr Tobin’s evidence contains a compendium of the results of various historical searches of the Land. The evidence establishes that the New South Wales Department of Public Works, a State government department, was established by proclamation on 30 September 1859. The documents reveal that, on 15 June and 11 July 1898, the New South Wales Department of Public Works, accepted a tender to construct the House referred to variously as the “Caretaker’s Quarters”, “Sheriff’s Cottage” or the “Sheriff’s Officer’s quarters” adjoining the Hay Court House. The construction of the House and other police buildings including barracks and other offices were reported in the Riverine Grazier to have been completed as at February 1909. Further, Trove searches reveal subsequent requests by the Department of Public Works for tenders for repairs and painting in 1913.

39    I note that s 18 of the Public Works Act 1888 (NSW) required the Governor to direct that any authorised work be carried out by the deemed “constructing authority”. Alternatively, an approval could have been sought from the Legislative Assembly under s 13 of the PW Act. No direction or approval has been found. Hay LALC sought to avail itself of the presumption of regularity citing Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154. As the State Minister observed, citing the observations and application of the principle in Dungog Shire Council v Attorney General of New South Wales [2024] FCA 166 at [219]-[224], the presumption cannot cure formal defects. Nonetheless, I am of the view that Hay LALC has established that the House’s construction or establishment was valid.

40    Accordingly, I am satisfied that the Department issued and accepted the tender for construction of the House in 1898 and issued tenders for subsequent works and repairs to the House in 1913, and the House was constructed or established by or on behalf of the Crown, or constructed with the authority of the Crown. As a consequence, the House was a previous exclusive possession act within the meaning of s 23B(7) of the NT Act because (i) its construction or establishment was valid, having been completed before the commencement of the Racial Discrimination Act 1975 (Cth) and was valid under the PW Act; (ii) the House was a ‘building or other structure … that is a fixture’; and (iii) it was constructed or established on behalf of the Crown, or a local government body or other statutory authority of the Crown.

The Front Yard, the Outdoor Patio, the Back Yard, the North Side Yard and the South Side Yard are necessary and incidental to the House

41    As to the basis for the claim of extinguishment with respect to other parts of the land surrounding the House, Hay LALC’s primary position is that the entirety of the Land comprises one public work from which extinguishment arises with respect to the entirety of the Land. Alternatively, it submits that, by operation of s 251D of the NT Act, native title is extinguished. Section 251D is extracted in full:

251D Land or waters on which a public work is constructed, established or situated

In this Act, a reference to land and 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    I am not satisfied that Hay LALC has made out its primary contention that it can be established that the entirety of the parcel of Land comprised the public work. However, for the reasons which follow, it is my view that Hay LALC has established that native title is extinguished with respect to the Land described as the Yard Spaces by operation of s 251D.

43    By operation of this provision, a previous exclusive possession act may extend the footprint of the land to land used “which is or was necessary for, or incidental to, the construction, establishment or operation of the work”. By this extension, Hay LALC submits (as its alternative contention) that the Land (over which native title has been extinguished) does not comprise solely of the footprint of the House but extends to the entirety of the land including parts of the Yard Spaces, consisting of the paths, fenced outdoor patio, gates, fences and clothesline.

44    Hay LALC must provide sufficient evidence to support any contention as to the extent of the area adjacent to a public work that it says falls within the meaning of s 251D. Moore J in King v Northern Territory [2007] FCA 944 at [216] described that the statutory purpose of s 251D is to ensure that:

….. areas around and immediately proximate to land on which public works were located were available (and unencumbered by native title rights and interests) to facilitate the initial construction or establishment and ongoing operation of the works.

45    Part of the inquiry will include considering the nature of the public work itself in order to be able to identify the area contemplated by that definition, as further illustrated by Moore J’s consideration of the land surrounding a bore, at [219]:

The public work was the bore … It is unlikely that … the definition of ‘public work’ was intended to comprehend all or part of the underground water source … It is the operation of the pumping facility to which the extended definition is directed and not the water the bore extracts. Any exclusion zone on which s 251D would operate would be the land necessary to maintain the continuing operation of the bore.

46    The existence and use of a public work necessarily requires “access … for both the establishment and the operation of the works’”, “that the work be maintained” and “kept secure from unauthorised outside interference”: Hayes v Northern Territory [1999] FCA 1248; 97 FCR 32 at [121(xx)]. These requirements are necessarily closely linked to the circumstances and the nature of the public work.

47    I am satisfied that the Yard Spaces (comprising the Front Yard, the Outdoor Patio, the Back Yard, the North Side Yard and the South Side Yard), are necessary for, or incidental to, the operation of the House as a residence, by operation of s 251D of the NT Act. They include areas required to access the House and also for the quiet enjoyment of the residence: Previous authority has contemplated (though ultimately not made out on the evidence) that land adjacent to a camping area which was proximate to the camp buildings and was necessary for the camp as a buffer zone could lead to native title being extinguished, by operation of s 251D, to that land: Margarula v Northern Territory [2016] FCA 1018; 257 FCR 226 at [374]-[375]. The areas are confined and proximate to the House and by reason of the paving, concrete and hills hoist indicate that the use of those areas facilitated and was consistent with the use of the public work. Mr Campbell’s evidence confirms the same: Mr Campell deposed to the obvious as evident from the above, that he used those areas to enter and exit the House, to drive and park his car, to keep his animals in the yards and dry his laundry. He maintained the lawns and gardens in that area and the grass in the driveway between the Hay Court House.

The Court House is a public work

48    Turning then to the Further Fenced-In Area, the evidence revealed that the Further Fenced-In Area, has been separated by a fence from the Backyard at least from the early 1980s, its upkeep in the 1980s was maintained by the Court House gardener and there were public toilets situated in the area for use by offenders appearing at the Court House. I am not satisfied that it can be established that the Further Fenced-In Area was necessary and incidental to the construction, establishment or operation of the House.

49    The question is then whether Hay LALC has established that the Further Fenced-In Area is necessary and incidental to the construction, establishment or operation of the Court House and/or public toilets. The first ancillary question then is whether the evidence establishes that the Court House and (if necessary) the toilets are public works within the meaning of s 253 of the NT Act.

50    The State Minister and NTSCORP submitted that the Court may be satisfied that: (i) the Court House is a public work and that public work extends to related infrastructure which includes the toilets and the wider footprint in the Fenced-In Area and (ii) alternatively, by reason of the Court House and/or the toilets being a public work, by operation of s 251D, the entirety of the Further Fenced-In Area, is necessary or incidental to the operation of those public works.

51    The evidence establishes that the Court House is a public work within the meaning of s 23B. The evidence establishes that the Court House was designed by the New South Wales Government Architect. On 6 July 1887, the Hay Court House (Site Acquisition) Bill 1887 was passed to vest in the present site in the Crown. The New South Wales Department of Public Works called for tenders for its construction in January and July 1891 and thereafter tenders were accepted on 26 August 1891. The Hay Court House opened on 30 September 1892. The funds necessary for the construction (£3,000) were authorised by legislation and appeared in Schedule C to the 1892 estimates of the New South Wales Department of Public Works. Thereafter, there is further evidence as to further tenders for electricity, rate books and a conservation plan.

52    The State Minister submits, and I accept, that the evidence establishes that the constructing authority had the relevant statutory power to advertise, tender and construct the public works (being the Court House) and any other works in accordance with the applicable State public works legislation. As a consequence, I am satisfied that the Hay Court House was a previous exclusive possession act, for the purpose of s 23B of the NT Act, as defined in s 253.

53    The evidence also establishes that the public toilets form part of the Hay Court House public works. The State Minister, during oral argument, referred to the “Hay Police Buildings Block Plan”, signed by the Government Architect, on 2 April 1936. That Plan depicts the “existing sewage”, with a dotted line, to what appears to be the location of the toilets. Reference was also made to the 1998 Conservation Management Plan which contained an historical overview of the positions of toilets at different times. It suggests that the toilets were located in a position different from that identified by Mr Campbell. However, I am prepared to accept, as the parties urged in unison, that the basic illustration is inaccurate and Mr Campbell’s evidence is to be preferred. Mr Campbell recalled that there were bricked public toilets in the Further Fenced-In Area when he lived at the House. The evidence reveals that those toilets were demolished in 1992, according to the Hay Court House Management Plan. I am satisfied that the works constituted a “fixture” with a degree of permanency. This is so because the toilets were connected to the Hay sewer on 5 June 1906 and have been maintained at least until the 1980s.

54    It is my view that Hay LALC has established that native title has been extinguished with respect to the Further Fenced-In Area, by reason of my findings with respect to the Hay Court House and the toilets, and by operation of s 251D. It can be inferred that this portion of the Land was maintained by the Court House, being necessary for or incidental to the operation of the Court House and related buildings and infrastructure.

Conclusion

55    For these reasons, I consider it appropriate to make the determination sought by Hay LALC, given it has discharged its burden in proving that no native title exists in the Land.

Associate:

Dated:    12 December 2025