Awabakal Local Aboriginal Land Council v Attorney General of New South Wales - [2020] FCA 1507 - FCA 2020 case summary — Zoe

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

[2020] FCA 1507

Federal Court of Australia|2020-10-20|Before: Griffiths J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2020-10-20

Before

Griffiths J

Source

Original judgment source is linked above.

Judgment (11 paragraphs)

[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 comprised in and known as: (a) Lot 3109 in Deposited Plan 755247; (b) Lot 1814 in Deposited Plan 42580; (c) Lot 976 in Deposited Plan 755233; (d) Lot 1580 in Deposited Plan 755233; and (e) Lot 1713 in Deposited Plan 755233.
No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

Introduction 1 This proceeding is a non-claimant application for determination of native title under s 61(1) of the Native Title Act 1993 (Cth) filed on 24 January 2020 by Awabakal Aboriginal Land Council (Awabakal) (as incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA)). The application relates to 5 parcels of land within the Newcastle City Council and Lake Macquarie City Council local government areas (the Application Areas), being: (1) Lot 3109 in Deposited Plan 755247 (Area 1); (2) Lot 1814 in Deposited Plan 42580 (Area 2); (3) Lot 976 in Deposited Plan 755233 (Area 3); (4) Lot 1580 in Deposited Plan 755233 (Area 4); and (5) Lot 1713 in Deposited Plan 755233 (Area 5). 2 In total, the Application Areas comprise approximately 0.029 square kilometres. Awabakal is the registered proprietor of the Lots comprising the Application Areas. 3 Awabakal seeks a determination under 86G that native title does not exist in relation to the areas of land and waters in the Application Areas. That determination is sought because Awabakal's current and future ability to deal with the Application Areas is restricted as a result of ss 36(9) and 42 of the ALRA. 4 The respondents in this matter are the Attorney General of New South Wales and NTSCORP Limited. The Attorney General and NTSCORP filed notices under s 86G(2) of the Native Title Act that they do not oppose the orders sought by Awabakal. As such, the application is unopposed for the purposes of s 86G(1)(a). Awabakal and the Attorney General were supportive of the application being determined on the papers and NTSCORP did not oppose that course. 5 For the reasons given below, it is within the Court's power and appropriate that the orders sought be made.

[3]

Relevant legislation and case law 6 Section 42(1) of the ALRA provides that: (1) An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act). 7 Awabakal seeks the determination in this case to enable it to "deal with land". The term "deal with land" is defined in s 40 of the ALRA to include, inter alia, the sale, exchange, lease mortgage, disposal of, or other creation of or passing of a legal or equitable interest in land, the grant or release of an easement or covenant benefiting land, the making of a development application or any other action (including executing an instrument) relating to land that is prescribed by the relevant regulations. Section 36(9) of the ALRA relevantly provides that "any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer." 8 Section 86G of the Native Title Act provides that: 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. 9 The principles applicable to the consideration of a non-claimant application under s 61 of the Native Title Act were recently addressed in Mace v State of Queensland [2019] FCAFC 233; 375 ALR 717 (Mace), where regard was also had to earlier principles established in the Full Court decision of Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320. While the non-claimant applications in Mace were unopposed, as stated in the summary of the principles below, the legal question remains the same whether or not there is a contradictor to the application. 10 The principles in Mace have been helpfully summarised by Jagot J in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10] as follows: (1) The special functions vested in an Aboriginal Land Council (ALC)... 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 [Native Title Act]: [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 [Native Title Act] 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. (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 [Native Title Act]: [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]. 11 The legislative framework underlying the making and determination of non-claimant applications is summarised at [33]-[40] of Mace. 12 An applicant may establish that no native title exists in relation to an application area by proving, on the balance of probabilities, that: (a) native title is not claimed by or cannot be proved by a native title claimant (the subject of detailed consideration in Mace); or (b) any native title which may have existed has been extinguished (see Mace at [49]; Worimi Local Aboriginal land Council v Attorney General of New South Wales [2018] FCA 1329 at [97]-[98] and Gandagara Local Aboriginal Land Council v Attorney General of New South Wales [2013] FCA 646 at [64]-[70]).

[4]

Awabakal's evidence and submissions 13 The applicant filed two affidavits in support of its application, being: (a) the affidavit of Robert Daniel Russell sworn on 30 January 2020 (Russell Affidavit); and (b) the affidavit of Christopher Malcolm Turner affirmed on 24 June 2020 (Turner Affidavit). 14 The Russell Affidavit annexed various documents, including: (a) copies of letters dated 27 June 2018 from the relevant NSW Minister confirming the grant of Awabakal's claim over the Application Areas and that arrangements would be made for the transfer of title to Awabakal; (b) gazettal notices relevant to Special Lease 1959-18 Newcastle and the associated tenure card; and (c) gazettal notices relevant to Special Lease 1964-46 Newcastle and the associated tenure card. 15 The Turner Affidavit also annexed various material, which is noted below where relevant. 16 Subject to discharging its burden of proof, Awabakal submitted that the determination sought was within the Court's power for the following reasons: (a) there is no overlap between the Application Areas and any previous approved determination of native title for the purposes of ss 13(1) and 68 of the Native Title Act; (b) the Court has jurisdiction to hear and determine the application under s 81 of the Native Title Act; (c) the relevant State Minister and the representative body have received notice of the application; (d) public notice was given under s 66 of the Native Title Act; (e) the notification period specified under s 66 of the Native Title Act expired on 10 June 2020; and (f) the proposed order includes all the details required under s 225 of the Native Title Act. 17 With regard to the notification requirements under s 66 of the Native Title Act: (a) the notification period for the application was 11 March 2020 to 10 June 2020; (b) public notices specifying the application were published by the Native Title Registrar of the National Native Title Tribunal (NNTT) in the Koori Mail and the Newcastle and Lake Macquarie Star on 26 February 2020; and (c) the NNTT provided a copy of the application to the respondents, the Commonwealth Minister, the Newcastle City Council, the Lake Macquarie City Council, NSW Aboriginal Land Council, Transgrid and Telstra. 18 The applicant noted the concerns raised in Mace at [65] and [116] regarding the lack of use of other forms of media for notification purposes apart from newspapers. The applicant said that public notices given by the NNTT are routinely published on its website and that, in the case of the Koori Mail, native title notices are accessible without charge through its webpage. 19 The only 'Form 5: Notice of Intention to become a party to an application' filed during the notification period was by NTSCORP. No interlocutory application has subsequently been filed by any entity seeking to be joined to the proceeding. 20 With regard to overlapping claims, Awabakal referred to two historical claims which overlapped with the Application Areas: (a) the Boongary Clan claim (NSD6097/1998); and (b) the Awabakal and Guringai People's claim (NSD780/2013). 21 The Turner affidavit annexed various documents relating to these historical claims. 22 Awabakal noted that the native title rights and interests asserted in the Boongary Clan Claim were not claimed in relation to land which had been subject to an act covered by s 23B of the Native Title Act (i.e. a previous exclusive possession act (PEPA)). 23 In relation to the Boongary Clan claim, Awabakal further noted that: (a) it was registered from 1 April 1998 until 1 December 1999, and was discontinued on 22 June 2000; (b) while it was registered on a transitional basis before the introduction of the registration test, it was not accepted for registration when the full registration test was applied; (c) no further circumstances surrounding the discontinuance could be gleaned from the Federal Law Search Record annexed to the Turner affidavit; and (d) there have already been numerous negative determinations of native title in other parts of the Boongary claim area in relation to land owned by local aboriginal Land Councils, including Deerubbin Local Aboriginal Land Council, Bahtabah Local Aboriginal Land Council and Awabakal (see for example Deerubbin v Aboriginal Land Council v Attorney General of New South Wales [2017] FCA 1067; Batabah Local Aboriginal Land Council v New South Wales Native Title Services Limited [2007] FCA 382 and Awabakal Local Aboriginal Land Council v Attorney General of New South Wales [2018] FCA 1249). 24 Awabakal submitted that the Boongary Clan claim should not therefore cast any real doubt that, on the balance of probability, no native title exists in the Application Areas (citing Mace at [176]). 25 In relation to the Awabakal and Guringai People's claim, which was discontinued on 28 June 2017, Awabakal referred to [168]-[179] of Mace where the Full Court noted that a number of non-claimant applications had been notified since the discontinuance and stated that: If those who brought the Awabakal and Guringai People's claim have not come forward by now, it is reasonable to infer those people no longer assert native title continues to exist in the area claimed in this non-claimant application. 26 In these circumstances, Awabakal submitted there was ample basis for the Court to conclude, on the balance of probabilities, that there are no persons of groups who assert native title in the claimed land. 27 In line with the relevant principles referred to above, Awabakal's submissions stated that the determination that no native title exists was sought on the basis that native title either: (a) is not claimed by, or cannot be proved by, a native title claimant; or (b) has been extinguished by one or more prior acts of the Crown. 28 Awabakal submitted that there were factual parallels between the evidence before the Full Court in Mace and this case, which included: (a) there is no approved determination of native title over any part of the Application Areas; (b) no claimant application was filed during the notification period in relation to any part of the Application Areas, nor has any application subsequently been filed; (c) no person or group has sought to be joined as a respondent to assert a native title interest defensively in relation to any part of the Application Areas; and (d) a registered claimant applicant was made in relation to an area including the application area, and was discontinued before Awabakal's non-claimant application was filed. 29 Awabakal submitted that because native title is not claimed by a native title claimant or otherwise asserted in relation to the Application Areas, it has therefore discharged its burden of proof and it is not strictly necessary for the Court to consider other or further grounds for granting the application or to make specific findings in relation to the extinguishment of native title. 30 However, Awabakal did in any event provide the tenure evidence annexed to the Russell affidavit (referred to above) and submitted that the material established that any native title interest was wholly extinguished. To avoid adding unnecessarily to these reasons, that material and the related submissions will not be summarised here but is addressed where relevant in the consideration below.

[5]

The respondents' submissions summarised 31 The first respondent noted that Awabakal had provided evidence that satisfied the formal requirements and that it was uncontroversial that the order sought was in the Court's power. 32 In contrast to Awabakal's position, the Attorney General submitted that the order sought could be made on the sole basis that native title is extinguished, and that the Court is not required to consider the contention that native title is not claimed by, or cannot be proved by, a native title claimant. The Attorney General cited Mace at [49] and Worimi at [58] in support of this proposition. The Attorney General nevertheless addressed Awabakal's alternative "absence of evidence" contention and submitted that, subject to any evidence from NTSCORP, the contention is capable of being satisfied having regard to: (a) the Full Court's findings in Mace and the discussion of the former Awabakal and Guringai native title claimant in that matter; and (b) the finding of Robertson J in Awabakal that native title did not exist in a parcel of land approximately 600m north of Area 1 (and approximately 6km north of the other parcels of land comprising the Application Areas). 33 NTSCORP noted that the Court had previously placed a high importance on evidence from local Aboriginal people with traditional knowledge in relation to the area the subject of non-claimant applications and there was no such evidence in this proceeding. NTSCORP accepted Awabakal's evidence that Special Leases 1959-18 and 1964-46 would have wholly extinguished native title in the Application Areas. NTSCORP also made submissions that the judgment of Reeves J in CG (deceased (on behalf of the Badimia People) v Western Australia [2016] FCAFC 67; 240 FCR 466 (Badimia) is correct, such that there is no logical reason to determine a non-claimant application once land is subject to s 24FA protection under the ALRA. However, NTSCORP did not deny the necessity, nor the power, of the Court to determine non-claimant applications for the purpose of State legislation.

[7]

a) Native Title has not been claimed 36 For the reasons that follow, the Court is satisfied that no native title exists on the basis of Awabakal's primary submission that native title has not been claimed. 37 The evidence filed by Awabakal has established certain preconditions to the Court's power to make the order sought, including: (a) there is no approved determination of native title over any part of the Application Area; (b) no claimant application has been filed during the notification period in relation to any part of the Application Area, nor has any application subsequently been filed; (c) no person or group has sought to be joined as a respondent to assert a native title interest defensively in relation to any part of the Application Area; (d) a registered claimant application was made in relation to an area including the Application Areas, and was discontinued, before Awabakal's non-claimant application was filed; (e) there is no evidence from NTSCORP identifying any person or group who might hold native title in the Application Area; and (f) there is no evidence of any dispute within the local Aboriginal community about the non-claimant application. 38 These matters take the application some way, but do not of themselves discharge Awabakal's burden of proof in circumstances where there is evidence of historical claims made over the Application Areas (see Mace at [155]-[156]). The absence of responses to the public notification and the other formal factors above are entitled to some weight but are not sufficient in the present case where there have been historical claims in the Application Areas. 39 As noted above, Awabakal identified two historical claims overlapping with the Application Areas. Having regard to the matters raised in Awabakal's submissions regarding the historical claims as summarised at [23]-[25], I am satisfied that Awabakal has discharged its burden of proof that no native title exists within the Application Areas. 40 In so far as NTSCORP suggests that the absence of evidence from local Aboriginal people is a hurdle to finding that no native title exists within the Application Areas, the Full Court has rejected the contention that such evidence is always necessary (see Mace at [180]-[181]). 41 With regard to NTSCORP's submissions that the separate judgment of Reeves J in Badimia is correct, it goes without saying that "the position as stated by the majority in Badimia is the law to be applied" (see Mace at [69]). 42 For the above reasons, I am satisfied that the orders sought are both within the Court's power and appropriate to be made.

[9]

Special Lease 1964-46 Newcastle 48 The relevant documents related to Special Lease 1964-46 are annexed to the Russell Affidavit. Special Lease 1964-46 was for the "Erection of building (clubhouse) and recreation (bowling greens)", granted in perpetuity and notified on 15 October 1965 in relation to Portion 3109. The title search of Lot 3109 in Deposited Plan 755247 (i.e. Area 1) attached to the non-claimant application shows that it was formerly known as Portion 3109. Special Lease 1964-46 affected the whole of Area 1. 49 The relevant gazettal notice, dated 15 October 1965, does not identify the operative statutory provision for the grant of Special Lease 1964-46. However, the Court accepts the submissions of Awabakal and the Attorney General that the Court can be satisfied that it was granted pursuant to 75B of the CLCA, in circumstances where: (a) s 75B enabled the Minister to grant to grant a special lease in perpetuity over "Crown lands (not being in the Western Division) for business purposes or for any purpose declared by the Minister by notification in the Gazette to be a purpose within this section"; (b) the relevant area is not within the Western Division; (c) "Erection of buildings" was declared to be a purpose within s 75B of the CLCA on 26 June 1953 (as shown in the gazettal notice filed with the Attorney General's written submissions); (d) "Recreation" was declared to be a purpose within s 75B of the CLC on 14 June 1957 (as shown in the further gazettal notice filed with the Attorney General's written submissions); and (e) Special Lease 1964-46 Newcastle was granted in perpetuity on 15 October 1965. 50 As noted above the separate purposes "erection of building" and "bowling green" appear in Item 3(8) of Pt 1 of Sch 1 of the Native Title Act as Scheduled interests. Given the almost exact correlation between the relevant purposes listed in Item 3(8) and the terms of Special Lease 1964-46, I do not consider that it is necessary in the present case to draw any analogy between the terms of the particular lease and those appearing in the list in Item 3(8) of the kind discussed in Worimi Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 1270 at [37] per Jagot J (referring to the obiter in Darkinjung Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1136 at [36(e)]). 51 There is evidence to establish that Special Lease 1964-46 was a Scheduled interest that wholly extinguished native title over Area 1.

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

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