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

1. Native title does not exist in relation to the land in the State of New South Wales comprised in and known as Lots 1 and 2 in Deposited Plan 1036815. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

KENNETT J 1 The applicant applies under s 61 of the Native Title Act 1993 (Cth) (NTA) for a determination of native title under s 13 in relation to two parcels of land (the subject land) situated in the town of Coonamble, New South Wales. 2 The application is what is commonly described as a non-claimant application, and seeks what is termed a negative determination. That is to say, the applicant is a person who holds a non-native title interest in the subject land and seeks a determination that no native title rights or interests exist in it. Since 8 March 2021 the applicant has been the registered proprietor of the subject land, having made a successful claim under the Aboriginal Land Rights Act 1983 (NSW) (Land Rights Act). Under s 36(9) of that Act, a transfer of land to an Aboriginal Land Council following a claim for that land is to be for an estate in fee simple "but shall be subject to any native title rights and interests existing in relation to" the land. Where a transfer in those terms is made, the Aboriginal Land Council is not permitted to deal with the land unless it is the subject of an approved determination of native title under the NTA: s 42(1) of the Land Rights Act. 3 The subject land is described as Lots 1 and 2, Deposited Plan 1036815. It has a total area of 877.8 square metres and is situated on the north side of Aberford Street, between the Castlereagh River and Castlereagh Street. To the north of the subject land is what appears to be open space, to the east is a commercial building, and to the west is what appears to be a residence with river frontage. The subject land itself is concreted and partly occupied by a small commercial building, which faces on to Aberford Street, and a garage. 4 A non-claimant application for a determination of native title can only be made, under s 61(1) of the NTA, in relation to an area of land for which there is no approved determination of native title. The subject land is within the external boundaries of the claim area of a claim made on behalf of the Gomeroi People, lodged in December 2011 and filed in this Court in 2019 (the Gomeroi People Claim). However, that claim has recently been amended, pursuant to orders made by Burley J on 26 April 2023, so as expressly to exclude the subject land. Searches made by the parties indicate that no determinations of native title have been made covering land in the Coonamble Local Government Area, within which the subject land is situated. 5 Under s 86G(1) of the NTA, where an application is "unopposed", the Court may make an order consistent with the terms sought by the applicant without holding a hearing if it is satisfied that the order is within the power of the Court and appropriate to be made. That subsection 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 involved 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). 6 The only respondents to the application are the Attorney General of New South Wales (the State) and NTSCORP Limited (NTSCORP). (Three other persons were initially joined as respondents but each has filed a notice that they wish to cease to be a party.) The State and NTSCORP have filed notices under s 86G(2) of the NTA stating that they do not oppose the orders sought by the applicant. They have also filed written submissions confirming and supporting that position. The application is therefore "unopposed", as defined by s 86G(2). 7 The power to make an order without holding a hearing under s 86G(1) arises after the end of the period specified in the notice given under s 66 of the NTA. Section 66 requires the Native Title Registrar, when given a copy of an application that has been filed in the Court, to provide copies of the application to the relevant State or Territory Minister (s 66(2)) and to the representative bodies for the area covered by the application (s 66(2A)). Evidence before the Court confirms that this has been done. Section 66 also requires the Registrar to give notice of the application to the persons referred to in s 66(3)(a) to (c) and to notify the public in the manner determined for the purposes of s 66(3)(d). Evidence before the court also confirms that this has been done. 8 The notice given under s 66(3) is required by s 66(8) to specify a day as the "notification day" for the application. Section 66(9) requires that day to be a day by which, in the Registrar's opinion, it is reasonable to assume that the notice will have been received by, or otherwise come to the attention of, the relevant persons. The notices given in the present case specified the notification day as 1 December 2021, which was around two weeks after public notification occurred (in the Coonamble Times and the Koori Mail) and three weeks after the National Native Title Tribunal had sent notice of the application to the bodies specified in s 66(3). Other matters required to be contained in the notice are set out in s 66(10), including a statement to the effect that a person who wants to be a party in relation to the application must notify the Court within the period of three months starting on the notification day (the notification period). The notices issued in the present case included a statement to this effect. The period specified in the notices ended on 28 February 2022. The temporal precondition to the exercise of power under s 86G(1) is therefore satisfied. 9 NTSCORP and the three former respondents referred to above filed notices of intention to become a party to the application within the notification period. The three former respondents are individuals who identified themselves as members of the body which is the applicant in the Gomeroi People Claim. As noted above, the subject land has been excised from the claim area for the Gomeroi People Claim and these individuals have given notice that they no longer wish to be parties. I infer, therefore, that the present application has come to the attention of the claim group in the Gomeroi People Claim and there is no opposition to it from that quarter. No other applications for joinder have been made. 10 However, a determination of native title is not an ordinary inter partes question and the lack of opposition is not determinative in itself. For an order to be made under s 86G(1), the Court must be satisfied that the order is within the Court's power and it is appropriate to make the order without holding a hearing. 11 Apart from satisfaction of procedural preconditions, the requirement for the Court to be satisfied that a proposed negative determination is "within the power of the Court" means that the Court must be satisfied, on the material before it, that native title does not exist in the subject land. As I noted in Moller v State of Queensland [2023] FCA 347 (Moller) at [10]-[11]: It was said in Mace v Queensland [2019] FCAFC 233; 274 FCR 41 (Mace) at [42]-[44] (Jagot, Griffiths and Mortimer JJ) that a non-claimant applicant must establish "the same kinds of matters" whether the application is decided under s 86G(1) or is contested: the absence of a contradictor in the former case is a forensic difference, not a legal one. These statements are obiter (in that the applications in Mace were not dealt with under s 86G), but are carefully considered dicta by a Full Court in a leading case concerning non-claimant applications under the [NTA]. Mace has been treated by single judges as establishing that "[t]he question for the Court remains the same whether the application is unopposed, or contested: has the applicant discharged its burden of proof that no native title exists in the claim area?" (Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1506 (Deerubbin) at [14(b)] (Griffiths J); see also Murphy v Queensland [2021] FCA 81 at [26]-[27] (Collier J)). I therefore proceed on the basis that, despite the absence of any party adducing evidence or making submissions in support of the existence of native title, the applicant must establish that native title does not exist. That must be shown according to the usual civil standard of proof (Deerubbin at [14(c)]). Appropriate inferences may be drawn from the absence of any opposition (especially from the relevant representative body) despite notice of the application having been given, but the strength of those inferences depends on the circumstances of the case (Deerubbin at [14(i)]; Mace at [94]). 12 The applicant in the present case relies on native title having been extinguished by the grant of a fee simple interest in the subject land, prior to the interest held by the applicant. A detailed tenure history is before the Court. It shows that the subject land was formerly part of parcels that were identified as Allotments 3 and 4 of Section 8 in the Town of Coonamble, Parish of Moorambilla, County of Leichhardt. Allotments 3 and 4 were granted to one Neil McGarry on 16 August 1867. Those grants were expressed to be to Mr McGarry, "his Heirs and Assigns forever", language which is recognised as conveying an estate in fee simple (Fejo v Northern Territory [1998] HCA 58; 195 CLR 96 (Fejo) at [11] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). They were thus inconsistent with the continued recognition by Australian law of any native title rights or interests in the land (Fejo at [43]). In the language of the NTA, they comprised "previous exclusive possession acts", which "completely extinguished" native title (ss 23A(2), 23B). The effect of such an act, when attributable to the State of NSW, is confirmed by s 23E of the NTA and s 20(1) of the Native Title (New South Wales) Act 1994 (NSW). A substantial body of authority establishes that the extinguishment of native title by grant of an inconsistent interest is permanent (see also NTA s 237A). Provisions in the NTA which call for prior extinguishment of native title to be disregarded (ss 47-47C) are not relevant here, as they are expressed to apply only in the context of a claimant application. 13 Evidence of the grants to Mr McGarry is therefore sufficient to establish that no native title rights or interests subsist in the subject land. 14 It is not necessary to recite the rest of the tenure history. However, I note that in 1985 Queen Elizabeth II became the registered proprietor of the subject land, and the land was later vested in the State Property Authority with effect from 1 July 2009 by operation of an order made under the State Property Authority Act 2006 (NSW). Section 18(1) of that Act provides that property transferred to the State Property Authority vests "for an estate in fee simple". That vesting in the State Property Authority formed the basis for the land to be claimed by the applicant under the Land Rights Act. 15 The conclusion that I have expressed above makes it unnecessary to go into the question whether a continuing connection with the subject land under traditional law could be established by any native title claimant. I am satisfied that the applicant has made out its claim on the balance of probabilities. 16 The last point to note in relation to the "power of the Court" to make the proposed orders is that, by s 94A of the NTA, an order containing a determination of native title must set out details of the matters referred to in s 225. The matters set out in s 225 are aspects of native title rights if they exist (their nature and extent, who the holders are, etc). These matters need not be spelled out in a case where the determination of the Court is that no such rights exist in the relevant land (see, eg, Deerubbin at [31(h)]). 17 I observed in Moller that the question whether it is "appropriate" to make the determination bears a different aspect in relation to a non-claimant application, as compared to a determination on a claimant application made without any active respondent under s 86G or a determination by consent under s 87 (at [19]): In the case of a determination made by consent that native title exists, the Court will necessarily concern itself with the quality of consent; in particular, whether the State in its capacity as guardian of the public interest has given an appropriate degree of scrutiny to the claims of the applicant before agreeing to the making of a determination that operates in rem (see eg Ryan (Snr) on behalf of the Warrgamay People v Queensland [2021] FCA 977 at [23]-[24] (Murphy J) and the cases cited there). In the case of a non-claimant application dealt with under s 86G, where notice has been given in accordance with s 66, no party has come forward to assert that native title exists, and the Court is satisfied that the proposed orders are within its power, the Court will at least usually be able to be confident that there is no reason not to make the orders sought. While the discretion to withhold relief clearly exists according to the terms of s 86G(1), the cases in which it would be exercised would be "rare indeed" (Mace at [73]). 18 No reason arises from the material before me why it is not appropriate to make the proposed determination. 19 I will therefore make orders in the terms sought by the applicant. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.