Awabakal Local Aboriginal Land Council v Attorney General of New South Wales

Federal Court of Australia|2018-08-22|Before: Mr J, Robertson J

Pursuant to s 86G of the Native Title Act 1993 (Cth):

Native title does not exist in relation to the area of land comprised in and known as Lot 103 DP758769.
No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This application, dated 25 October 2017, is made in relation to the entirety of Lot 103 in Deposited Plan 758769 in the Parish of Newcastle, County of Northumberland (formerly known as Allotment 103), New South Wales (the land). The land is on the corner of Hunter and Bolton Streets, Newcastle, the street address being 96 Hunter Street, Newcastle. The existing building on the land is the old Newcastle Post Office, built between 1900 and 1903. 2 The applicant is a Local Aboriginal Land Council established under the Aboriginal Land Rights Act 1983 (NSW). The applicant is the registered proprietor of the land. The applicant holds an estate in fee simple but, pursuant to s 36(9) of the Aboriginal Land Rights Act, subject to any native title rights and interests which existed in relation to the land immediately prior to its transfer to the applicant. 3 As at the date of this application, an administrator had been appointed to the applicant pursuant to s 222(1) of the Aboriginal Land Rights Act. The administrator was appointed with all of the functions of the applicant and its Board in accordance with, inter alia, the Aboriginal Land Rights Act and the Aboriginal Land Rights Regulation 2014 (NSW). 4 The applicant seeks a declaration and determination that native title does not exist in relation to the land. The application is a non-claimant application, applying for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth). 5 The orders sought are: Pursuant to section 86G of the Native Title Act 1993 (Cth), the Court orders that: 1. Native title does not exist in relation to the area of land comprised in and known as Lot 103 DP758769. 2. No order as to costs.

The legislation 6 The relevant section of the Native Title Act is as follows: 86G Unopposed applications Federal Court may make order (1) If, at any stage of a proceeding in relation to an application under section 61, but after the end of the period specified in the notice given under section 66: (a) the application is unopposed; and (b) the Federal Court is satisfied that an order in, or consistent with, the terms sought by the applicant is within the power of the Court; the Court may, if it appears appropriate to do so, make such an order without holding a hearing or, if a hearing has started, without completing the hearing. Note: If the application involves making a determination of native title, the Court's order would need to comply with section 94A (which deals with the requirements of native title determination orders). Meaning of unopposed (2) For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.

The evidence 7 There is a detailed and comprehensive affidavit by James Konrad Walkley, solicitor, affirmed 22 June 2018. Mr Walkley set out an extensive history of the land, including that on 30 June 2011 the NSW Aboriginal Land Council (NSWALC) lodged claim number 35845 under the Aboriginal Land Rights Act. The State Minister refused the claim on 31 August 2011. NSWALC commenced a class 3 appeal from the Minister's refusal in the Land and Environment Court. Justice Pepper found in favour of NSWALC on 5 June 2014. The land was transferred by the State of New South Wales to the applicant on 16 September 2014 subject to certain conditions. 8 By reference to the National Native Title Tribunal (NNTT) Geospatial Database, Mr Walkley deposed, and I find, that there are no relevant overlaps with a native title determination or a native title application. 9 The respondents to the application are the Attorney General of New South Wales and NTSCORP Ltd (NTSCORP). 10 There is a notice under s 86G by NTSCORP, dated 26 July 2018. 11 There is a notice under s 86G by the Attorney General, dated 27 July 2018.

The parties' submissions 12 In written submissions dated 22 June 2018, the applicant submitted it was not claiming native title to any of the land. In those circumstances, the procedure prescribed in the Native Title Act was required to be followed in order to elicit any potential claims for native title. 13 Pursuant to s 66 of the Native Title Act, the notification period for the non-claimant application filed on 31 October 2017 was 24 January 2018 to 23 April 2018. 14 The applicant submitted that the NNTT, on behalf of the Native Title Registrar, gave a copy of the application to the State Minister under s 66(2). The NNTT also gave notice to NTSCORP under s 66(2A) and published the required s 66(3)(d) public notice in the Newcastle Herald and the Koori Mail on 10 January 2018. The public notice specified that the notification period was from 24 January 2018 to 23 April 2018. 15 The applicant submitted that during the notification period no other parties filed a native title claimant application over the land. No native title claimant application had since been filed over the land. The only Form 5 filed during the notification period was by NTSCORP. 16 The applicant submitted that the determination sought was within the Court's power for the following reasons: (a) the application was a native title determination application made under s 61 of the Native Title Act. The applicant was the registered proprietor of the land. Accordingly, the applicant was a person who held a non-native title interest in relation to the whole of the land subject to the non-claimant application; (b) the Court had jurisdiction to hear and determine the application under s 81; (c) the notification period specified under s 66 expired on 23 April 2018 and the Court may make a determination of native title pursuant to s 86G after the notification period had expired; (d) the Court must not make a determination of native title in relation to an area if there was already a determination for that area. The NNTT's overlap report confirmed that there was no determination of native title for the land; and (e) the proposed order set out in Attachment A to the applicant's submissions included all of the details required under s 225. 17 The applicant submitted that in order to make the orders sought by the applicant, the Court must be satisfied on the balance of probabilities that native title did not exist in relation to the land either: (a) because native title was not claimed by, or could not be proved by, a native title claimant; or (b) because native title had been extinguished by one or more prior acts of the Crown. 18 The applicant referred to Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 and Gandangara Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 646. 19 As to the first of the matters in [17] above, the applicant submitted the prescribed procedures had not elicited any claimant applications in relation to the land nor had any party sought to be joined to the application as a respondent to assert that native title existed in the land. There were no previous approved determinations of native title in relation to the land. In these circumstances the applicant submitted that the Court may be satisfied that native title did not exist in relation to the land because it was not claimed by a native title claimant. In addition, the applicant submitted that the formal requirements of s 24FC had been satisfied and consequently the land was subject to s 24FA protection. 20 As to the second of the matters in [17] above, the applicant's primary position was that it was not necessary to consider evidence of extinguishment given the matters referred to in [19] above. 21 In written submissions dated 28 July 2018, the Attorney General in his capacity as State Minister submitted the State Minister was satisfied that the applicant had reliably established that native title did not presently exist because it was not claimed by or could not be proved by a native title claimant. 22 As the registered proprietor of the land, the State Minister submitted that the applicant had standing to make an application in relation to the land under s 61(1). 23 For the reasons set out in specified paragraphs of the applicant's submissions and the evidence referred to therein (in particular annexure JKW24 to Mr Walkley's affidavit, the Overlap Analysis Report, referred to at [8] above), the State Minister submitted that the applicant provided a proper basis upon which the Court may be satisfied that native title did not presently exist in respect of the land. 24 The State Minister submitted that, because it was not claimed by or could not be proved by a native title claimant, it was not necessary for the Court to consider other or further grounds for granting the application. NTSCORP also appeared to endorse that approach. For that reason, the State Minister had not independently inquired into the facts deposed to in the applicant's evidence in relation to extinguishment and did not express any view in relation to them. 25 The State Minister referred to Kennedy v Queensland [2002] FCA 747; 190 ALR 707 at 714, in which Sackville J observed that s 86G "empowers the court, once the jurisdictional preconditions are satisfied, to make the order sought by the applicant, if it appears appropriate to do so, without holding a 'hearing'". His Honour stated that before he could exercise the discretion conferred by s 86G, he had to be satisfied of the following jurisdictional preconditions: (a) the non-claimant application is "unopposed" as that term is defined in s 86G(2) of the Native Title Act; and (b) an order in, or consistent with the terms sought by the applicant is within the power of the court. 26 The State Minister, for the reasons summarised above, submitted to the judgment of the Court in this application. 27 The State Minister submitted that a declaration that no native title rights or interests existed in relation to the land was, in principle, within the power of the Court. Whether such orders should be made depended upon the Court's view of all of the evidence adduced in support of the application and with the caution attendant upon a declaration of the nature sought. 28 In written submissions filed 26 July 2018, NTSCORP submitted, in short, that as this non-claimant application had no Aboriginal respondents, NTSCORP was not in a position to oppose the application and had filed a notice pursuant to s 86G.

Consideration 29 In terms of s 86G, I find that the application is "unopposed" because each other party has notified the Court in writing that they do not oppose an order in, or consistent with, the terms sought by the applicant. 30 Next, I am satisfied that an order in the terms sought by the applicant is within the power of the Court. I am satisfied that native title does not exist in relation to the land because it is not claimed by a native title claimant. As it is unnecessary for me to do so, I do not make any findings in relation to extinguishment. 31 I am satisfied, on the balance of probabilities, that no native title rights or interests exist in relation to the land: see CG (dec'd) (on behalf of Badimia People) v Western Australia [2016] FCAFC 67; 240 FCR 466 at [66]. 32 The discretionary issue then arises, which is whether it appears appropriate to make such an order without holding a hearing: see Kennedy at [28]-[30]. 33 The necessary or appropriate procedural steps have been taken. In particular the NNTT confirmed the relevant notifications and notices had been given: see annexure JKW21 to Mr Walkley's affidavit. 34 I have already referred to the Overlap Analysis Report. Having considered the evidence, being the affidavit of Mr Walkley, I find it appropriate to make the orders the applicant seeks and to do so without a hearing.

Conclusion and orders 35 The orders of the court will be: Pursuant to s 86G of the Native Title Act 1993 (Cth): 1. Native title does not exist in relation to the area of land comprised in and known as Lot 103 DP758769. 2. No order as to costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Aboriginal Land Rights Regulation 2014(NSW)

Native Title Act 1993(Cth)ss 61, 86G

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