Biraban Local Aboriginal Land Council v Attorney-General of New South Wales

Statutory framework and relevant legal principles 11 Section 13(1) of the NTA permits an application to be made to the Court for an "approved determination of native title" in relation to an area for which there is no other approved determination of native title. The Court has jurisdiction to hear and determine applications that relate to native title: NTA, s 81. 12 Section 61(1) of the NTA provides for who may make such an application for an approved determination. Relevantly, 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": see Mace at [33]. An "interest" in relation to land includes a legal or equitable interest in the land: s 253. The applicant is a LALC incorporated under s 50 of the ALR Act and is the registered proprietor of the Areas following a transfer pursuant to s 36 of the ALR Act and therefore has standing to make this application: Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 (Deerubbin 2017) at [44]; Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 at [9]. 13 Section 253 of the NTA provides both for claimant applications and non-claimant applications, and both types of application must be provided to the Native Title Registrar (Registrar) who is required to undertake the notification process in accordance with s 66 of the NTA: Mace at [35]-[37]. The Registrar must provide a copy of the application to the relevant State Minister: s 66(2) of the NTA, and to the appropriate representative bodies: s 66(2A) of the NTA. The Registrar is also required to give notice to persons or bodies specified in s 66(3)(a) of the NTA and to "notify the public in the determined way": s 66(3)(d) of the NTA. By s 66(10)(c) of the NTA, a notice under s 66(3)(a) or (d) must include a statement to the effect that, in relation to a non-claimant application, "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": s 66(8) of the NTA, or seek leave from the Court to become a party. Once that period has ended, the notification requirement is satisfied. 14 The Native Title (Notices) Determination 2011 (No 1) (Cth) is also relevant with s 6 providing that a notice under s 66(3) of the NTA must be published: by advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates, or, if the area is an offshore place, the geographical area closest to it that is an onshore place; and in a relevant special-interest publication. 15 A "determination of native title" is, as defined by s 225 of the NTA, a determination of whether or not "native title", as defined in s 223, exists in relation to a particular area. If native title is found to exist, there must also be a determination of the matters set out in s 225 (a)-(e) of the NTA. As a non-claimant application seeks a determination that native title does not exist, those matters in s 225 are not engaged and so the Court is not required to make a determination in relation to them: see CG v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [57] (Badimia). 16 The recent judgment of the Full Court in Mace affirmed the process to be undertaken in determining non-claimant applications whether they be under s 86G as in this case or where the matters are contested. In both cases, the question for the Court is the same: whether the applicant discharged its burden of proof that no native title exists in the claim area: Mace at [44]. 17 In Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113, Jagot J at [10] summarised the principles derived from Mace and Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 as follows: (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]. 18 The applicant submitted that proposition (17) referred to above is particularly relevant in this case. I will return to that issue below. 19 As to the potential significance of a prior registered claimant application made in relation to an area later covered by a non-claimant application, the Full Court in Mace accepted at [163], as explained by plurality in Badimia at [59], that the NTA encourages all persons with a proper interest in the resolution of the native title rights and interests in relation to any particular area to ensure that their interest is able to be taken into account where any application in relation to that area is made. If the assertions made in a prior registered claim are pressed by any party, then that can be the subject of evidence in the non-claimant application and tested in the usual way. Because of the "once and for all" nature of the determination the Court is asked to make, the obligation lies upon the person who asserts the native title interest to take steps to ensure their asserted interest is taken into account by making a claimant application or by joining as a respondent to assert native title defensively. Requiring a non-claimant to address a discontinued claimant application as if it were still pressed is fundamentally at odds with the scheme of the NTA: Mace at [163]. 20 As noted above, this case is appropriate to be dealt with pursuant to s 86G of the NTA which is in the following terms: 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. 21 To make the orders sought, the applicant must satisfy the Court on the balance of probabilities that native title does not exist in relation to each of the Areas either because: (i) native title is not claimed by, or cannot be proved by, a native title claimant; or (ii) native title has been extinguished by one or more prior acts of the Crown. As explained below, it was only necessary to consider the first basis.

Consideration 22 The applicant submitted that native title does not exist because it has not been claimed, or cannot be proven by, a native title claimant. 23 The applicant provided evidence that the formal notification requirements have been complied with in this case. That evidence is considered below. 24 Pursuant to s 66 of the NTA, the notification period for the application was 18 November 2020 to 17 February 2021. The National Native Title Tribunal (NNTT), on behalf of the Registrar, advised the applicant that the application would be notified in accordance with s 66(3) of the NTA by public notice to be published in the Koori Mail and the Newcastle Herald on 4 November 2020. Those public notices, specifying the notification period, were duly published. The NNTT provided a copy of the application to NTSCORP and to the NSW Crown Solicitor's Office. The NNTT also gave notice of the application to the Commonwealth Minister, LMCC, NSW ALC, Telstra and Transgrid. 25 No claimant application was filed during the notification period, nor has any native title claimant application since been filed over any of the Areas. No person sought to be joined to this proceeding (aside from NTSCORP). 26 At the conclusion of the notification period, the NNTT advised the applicant that a search of the Register of Native Title Claims (Register) was conducted on 24 February 2021 which showed that there were no relevant entries on the Register that fell within the external boundary of the application. 27 On 22 March 2021, the Board of Biraban LALC resolved that it was not aware of any native title rights and interests in each of the Areas. It can be expected that a LALC such as Biraban LALC, would usually be well-placed to know about such matters: Mace at [57]. 28 On 25 March 2021, Mr Turner conducted a search of the NNTT's determinations database which revealed that there have been five previous determinations that native title does not exist in the LMCC LGA, each as a consequence of a non-claimant application made by a LALC. 29 There are no approved determinations of native title in any of the Areas. 30 The Attorney General accepted that all formal notification procedures had been complied with and that no claim to hold native title has been asserted. 31 NTSCORP submitted that even if the formal notification requirements have been met, it is not inevitable that a determination will be made that native title does not exist. In particular, NTSCORP submitted that, citing Mace, the absence of responses to a non-claimant application through a public notification process is not necessarily a reliable indicator that there are no persons or groups who assert native title in a non-claimant application, especially where that notification process was conducted via newspapers rather than social media. Newspaper advertisements, it submitted, may only reach a proportion of people who may have an interest because of accessibility, pressures and demands on people's lives that may take precedence over reading newspapers for advertisements, literacy and the popularity of, and preference for, other information sources such as social media and television. 32 I made the following observations in respect to this issue in Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1236 (Bahtabah) at [24]: Although in Mace the Full Court appeared to express some concern about the use of newspaper advertisements to provide notice in an era of widespread use of social media, the Full Court described the notification requirement that referred to newspapers as a "not objectively unreasonable process": at [92]. The Full Court there observed at [92] that the notifications given by the NNTT were "published in newspapers which, we infer, are reasonably apprehended by the NNTT to reach a greater proportion of Indigenous readers than other newspapers might." The Court postulated, for the future, that perhaps "consideration should be given more regularly to the use of social media for these notifications": see discussion at [93]-[94]. Although the use of newspapers was not an unreasonable process in this case, the suggestion by the Full Court as to the consideration of the future use of social media is plainly sensible in the current environment. 33 Those observations are also apt in the circumstances of this case. See also Griffith Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1501 at [29]. 34 Some weight should be given to the fact that there were no responses to the notifications: Mace at [116]. That weight may be increased by the length of time that the non-claimant application has been on foot and without any objections being brought to the Court's attention: Mace at [116]. That said, as the Court recognised in Mace at [116], in circumstances where historical claims have been made, that no response was given to the notifications does not necessarily conclude the issue of whether the Court can be satisfied that native title does not exist. As noted above, the question is whether in all the circumstances the applicant has discharged its burden of proof that no native title exists in the Areas: Mace at [44]. See also Awabakal Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1507 (Awabakal 2020) at [38]. 35 NTSCORP did not make any submissions as to whether or not native title exists in the Areas but rather took issue with aspects of the approach adopted by the applicant in its submissions, particularly in relation to certain evidence adduced as to Biraban LALC's understanding of the cultural significance of the Areas and evidence of land use adjacent to the Areas. In the circumstances of this case, it is not necessary for me to address those issues. They could not affect the outcome. In any event, I doubt that such criticisms could be maintained in light of Wagonga - Full Court. 36 Accepting that each case turns on its own facts and evidence, the key evidentiary issue that arises in this application is the existence of previous claimant applications that have been made in relation to parts of the Areas. 37 The applicant's evidence is that two prior registered claimant applications have been made under the NTA whose external boundaries overlapped the Areas. The first is a claim by the Boongary Clan of the Taurai People, with the Federal Court file number: NSD 6097/1998 (Boongary Clan Claim). The second is a claim by the Awabakal and Guringai People, with the Federal Court file number: NSD 780/2013 (Awabakal and Guringai Claim). I note that other parts of these claims (including in the LMCC LGA) have been the subject of previous negative determinations by this Court.

Boongary Clan Claim 38 In relation to the Boongary Clan Claim, the applicant's evidence is that: (1) The claim was filed on 31 March 1998 and discontinued on 22 June 2000. (2) The claim was registered on a transitional basis between 1 April 1998 and 1 December 1999. The claim was not accepted for registration when the full registration test was applied pursuant to s 190B. (3) The circumstances surrounding the discontinuance could not be gleaned from the Federal Law Search Record (as at 5 March 2021). (4) There have been numerous negative determinations of native title in relation to other parts of the Boongary Clan Claim, including in the Deerubbin LALC, Bahtabah LALC and Awabakal LALC (see for example: Deerubbin 2017; Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1506; Bahtabah; Awabakal Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1249 (Awabakal 2018); Awabakal 2020). 39 The applicant submitted that, following the approach in Mace, the fact that the Boongary Clan Claim was briefly registered within the external boundaries of the Areas, should not be enough to cast any real doubt on the contention that the Court should be satisfied on the balance of probabilities that no native title exists. 40 The Attorney General highlighted the reasons surrounding the Registrar's registration decision in December 1999. It noted that the reasons on the NNTT's registration decision indicated that it was not satisfied that there was a factual basis for the assertion that there existed traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests, for the purposes of s 190B(5)(c). Consequently, the NNTT could not be satisfied that prima facie any of the native title rights and interests claimed in the application could be established for the purposes of s 190B(6), or that at least one member of the native title claim group currently has or previously had a traditional physical connection with any part of the land of waters covered by the application for the purposes of s 190B(7). I note that the registration decision was not filed in evidence but rather a hyperlink to the decision was included in the submissions. That hyperlinked copy of the decision appeared to be incomplete. Ultimately that is not of any real moment in this application. 41 The Attorney General agreed that it is open to the Court to find that the mere existence of the prior claim, in the absence of any substantive evidence from the Boongary Clan that they maintain their claim and where they have not sought to be heard, is not sufficient in this instance to weigh against making the determination sought. That is to be accepted.

Awabakal and Guringai Claim 42 The evidence in respect of the Awabakal and Guringai Claim is that: (1) The application was filed on 13 May 2013. (2) The application was registered from 13 June 2013 until 30 June 2017. (3) The application was discontinued on 28 June 2017. 43 The applicant in this proceeding was joined to the Awabakal and Guringai People Claim (in the NSD 780/2013 proceeding) as a respondent. 44 The applicant submitted that all of the separate parcels which comprise the Areas are within the external boundary of the Awabakal and Guringai People Claim that was specifically considered by the Full Court in Mace at [168]-[179]. The applicant did not put the Awabakal and Guringai People on notice of its application before the Awabakal and Guringai Claim was discontinued. It noted that this is the eighth non-claimant application to be notified in relation to the former Awabakal and Guringai claimant application area since 2017, the sixth being my decision in Bahtabah and seventh being the decision in Awabakal 2020. 45 In Bahtabah, which concerned an unopposed non-claimant application in the LMCC LGA, I considered similar issues relating to other parts of the Awabakal and Guringai Claim and the Full Court's discussion in Mace of those matters. Relevantly, at [30]-[35], I noted that: [30] An issue arises in relation to the Awabakal and Guringai People's Claim: First Turner affidavit at [34]-[40]. That claim was registered between 13 June 2013 and 30 June 2017 and was discontinued on 28 June 2017. The applicant identifies that it is "likely to have related to at least some of the Areas" and, is analogous to the situation that was before the Full Court in Mace. Mace was a decision concerning two non-claimant applications, one from Queensland (QUD31/2018) and the other from NSW (NSD1852/2018) (Darkinjung No 5). In Darkinjung No 5, Bahtabah was joined to the claim as a respondent: First Turner affidavit at [36], which was considered in Mace at [167]-[182]. The applicant contended that, but for the fact that it did not put the former Awabakal and Guringai People specifically on notice of its intention to make this non-claimant application before the claimant application was discontinued, the facts in this case are relevantly the same as those canvassed in Mace. [31] In Mace the Full Court made a number of findings about that claim, based on agreed facts. Those facts are identified in the First Turner affidavit at [34]-[40]. The evidence demonstrates that the Attorney General had not accepted that connection had been proved by the Awabakal applicant to the standard required and the Attorney General had indicated that a "non-native title settlement" was not available: First Turner affidavit at [38]. It was on that basis that the claim was discontinued. [32] The applicant submitted its non-claimant application is the sixth such application to be notified under the NTA since the discontinuance of the Awabakal and Guringai People's claim in relation to that former claim area. The application in Mace was the fifth application for which it was concluded at [165]: 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. [33] In the context of these particular facts and circumstances, the applicant submitted that there is ample basis for the Court to conclude, on the balance of probabilities, as in Mace at [164]: …whatever might have been the situation in the past, the situation at the time this non-claimant application falls to be decided is that there are no persons or groups who assert native title rights and interests in the claimed land. · [34] It was submitted that conclusion applies to each of the Areas. [35] I accept the applicant's submission in respect to the Awabakal and Guringai People's Claim. 46 There is no reason why that same conclusion would not apply with equal force in these proceedings. 47 It should, however, be noted that the Attorney General in its submissions drew the Court's attention to the existence of another previous claim by the Awabakal people made on 4 July 2012 (2012 Awabakal Claim). That claim was not identified by the applicant. It was accepted for registration on 2 August 2012 and discontinued on 9 May 2014. The 2012 Awabakal Claim fell within the area of the Awakabal and Guringai Claim and it was discontinued within the registration period of the Awabakal and Guringai Claim, prior to when the Awabakal and Guringai Claim was discontinued in 2017. Kerry Brauer brought the 2012 Awabakal Claim and was also the first named applicant in the Awabakal and Guringai Claim. No evidence was filed by the Attorney General (or any other party) in respect to the 2012 Awabakal Claim. 48 The Attorney General submitted that it is similarly open to the Court to find that the mere existence of these previous claims, in the absence of any substantive evidence from the Awabakal and Guringai People that they maintain their claim to hold native in the Areas and where they have not sought to be heard, is not sufficient in this instance to weigh against making the determination sought. I agree with that submission.

Conclusion 49 The Court is concerned with an unopposed non-claimant application. I am satisfied that the procedural requirements have been established. None of the prior claimants in connection with the Boongary Clan Claim or Awabakal and Guringai Claim sought to be heard on this application. Those claims were discontinued many years ago (22 years ago in the case of the Boongary Clan and 5 years ago in the case of the Awabakal and Guringai People). Having regard to the evidence, submissions, and relevant principles, I am satisfied on the balance of probabilities that no native title claims exist in the Areas and that the orders sought are within this Court's power. There are no factors which emerge on the evidence in this case which would render it otherwise inappropriate for a negative determination to be made. 50 Having reached that conclusion, it is unnecessary for me to address the alternative limb of the application relating to evidence of extinguishment: Darkinjung Local Aboriginal Council v Attorney-General of New South Wales [2018] FCA 1136 at [49]; Awabakal 2018 at [30]; Bahtabah at [39]. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.