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

Appropriateness of the orders sought by the applicant 31 The Court must be satisfied on the balance of probabilities that native title does not exist in relation to each of parcels comprising the Land, either: (a) because native title is not claimed by, or cannot be proved by, a native title claimant; or (b) because native title has been extinguished by one or more prior acts of the Crown. 32 The applicant submitted that the prescribed procedures referred to in [7] ff above have not elicited any claimant applications in relation to any of parcels comprising the Land within the notification period or subsequently; nor has any party sought to be joined to the application as a respondent to assert that native title exists in respect of any part of the Land. 33 The applicant submitted that there are no previous approved determinations of native title in relation to any part of the Land and that, in these circumstances, the Court may be satisfied that native title does not exist in relation to any part of the Land because native title is not claimed by, or cannot be proven by, a native title claimant, citing Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929 (Worimi) at [46]; Commonwealth of Australia v Clifton [2007] FCAFC 190 (Clifton) and Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 (Deerubbin) at [51] and [53]. 34 In addition, the applicant submitted that the formal requirements of s 24FC of the NTA have been satisfied and consequently the Land is subject to section 24FA protection.

Extinguishment of native title 35 The applicant submitted that although it is not necessary to consider evidence of extinguishment given the matters in [31]-[34] above, there is also evidence to establish that native title in Areas 2-14 inclusive has been extinguished by previous exclusive possession acts attributable to the State of New South Wales. 36 The applicant relied on Mr Oliver's evidence concerning the results of his tenure review of each of the 15 parcels comprising the Land. Mr Oliver's evidence and the applicant's submissions may be summarised as follows. (a) Area 1: As Mr Oliver's tenure review of Area 1 did not identify any relevant grants for Area 1, the applicant does not assert that any previous exclusive possession acts had affected Area 1, or that native title has been wholly extinguished in relation to Area 1. (b) Areas 2, 3 and 4: Crown Lease 1915-2, Crown Lease 1918-4 and Special Lease 1938-4 were granted under the Crown Lands Consolidation Act 1913 (NSW) (CLCA) and affected the whole of Areas 2, 3, and 4. The applicant submitted that since neither Crown Leases 1915-2 nor 1918-4 included a special condition that "does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose", both Crown Leases are "Scheduled interests" pursuant to Sch 1, pt 1, cl 3(10) of the NTA. In addition, the 3 areas were within Special Lease 1938-4 for Grazing Agriculture and Dairying, which the applicant submitted is also a "Scheduled interest" as the purposes of "agriculture (or any similar purpose) and grazing combined" and "dairying" are included in Sch 1, Part 1, cl 3(8) of the NTA. Therefore, Crown Lease 1915-2, Crown Lease 1918-4 and the Special Lease 1938-4 are each "a previous exclusive possession act" for the purposes of s 23B(2)(c)(i) of the NTA and, under s 20 of the Native Title (New South Wales) Act 1994 (NSW), they extinguished any native title in relation to Areas 2, 3 and 4 when they were granted in 25 August 1915, 19 July 1918 and 18 November 1938 respectively. (c) Area 5: Special Lease 1941-61 for Grazing and Agriculture was granted under the CLCA and covered the whole of Area 5. As the purpose of "agriculture (or any similar purpose) and grazing combined" is included in the list at Sch 1, Pt 1, cl 3(8) of the NTA, the applicant submitted that Special Lease 1941-61is a "Scheduled interest" with the same extinguishing effect as described above. (d) Area 6: the whole of Area 6 was subject to homestead farm leases granted under the CLCA (as described in the tenure card of Homestead Farm No 13-10) and Special Lease 1940-13 for Grazing and Agriculture. A "homestead farm" is a Scheduled interest pursuant to Sch 1, Part 1, cl 3(11) of the NTA, and Special Lease 1940-13 is a Scheduled interest under Sch 1, Pt 1, cl 3(8) under the purpose "agriculture (or any similar purpose) and grazing combined". The applicant submitted that consequently, the homestead farm leases and Special Lease 1940-13 had the same extinguishing effect as described above. In addition, a part of Area 6 was also affected by Special Lease 1956-9 for the erection of buildings (Hotel Buildings), which is a Scheduled interest under Sch 1, Pt 1, cl 3(8) under the purpose "erection of building", and has the same extinguishing effect as described above in respect of that part of Area 6 it affects. (e) Areas 7 and 8: Special Lease 1960-9 in Perpetuity granted under the CLCA on 12 January 1962 for Business Purposes (riding school) affects part of Areas 7 and 8, and is a "Scheduled interest" because its purpose of "riding school" is analogous to the purpose "equestrian grounds" which appears in the list at Sch 1, Pt 1, cl 3(8), so the applicant submitted. The applicant further submitted that Special Lease 1928-4 granted on 27 September 1929 for Residence and Business Purposes (Refreshment Room), which affects part of Area 8, is a "Scheduled interest" because the purposes "residence" and "refreshment room" both appear in the list at Sch 1, Pt 1, cl 3(8). The applicant submitted both Special Leases have the same extinguishing effect as described above in respect of the part of Areas 7 and 8 they affect. (f) Areas 9 and 10: Special Lease 1911-12 affected the whole of Areas 9 and 10 and was granted under the CLCA for grazing, pig and poultry farming. The applicant submitted that as the purposes of "pig and poultry farm", "piggery" and "poultry farm" each appear in the list at Sch 1, Pt 1, cl 3(8), and Special Lease 1911-12 was "primarily" able to be used for the purposes of "pig and poultry farm", the Special Lease was therefore a "Scheduled interest" with the same extinguishing effect as described above. In addition, the whole of Area 9 was also affected by Special Lease 1945-8 granted under the CLCA on 27 May 1949 for Business Purposes (Cultivation of Natural Flora). The applicant submitted that as the purposes of "cultivation", "cultivation of eucalyptus", "nursery garden", "orchard" and "tree farming" each appear in the list at Sch 1, Pt 1, cl 3(8), and that these purposes, or some of them, are directly analogous to "cultivation of natural flora", the Special Lease is a "Scheduled interest", with the same extinguishing effect as described above. (g) Areas 11 and 12: the whole of Areas 11 and 12 were affected by Special Lease 1962-69 for Residence, Agriculture and Grazing granted under the CLCA on 20 September 1963. The applicant submitted that since the purposes "agriculture (or any similar purpose) and grazing combined" and "residence" appear in the list at Sch 1, Pt 1, cl 3(8), the Special Lease is a "Scheduled interest" with the same extinguishing effect as described above. (h) Area 13: the whole of Area 13 was affected by two Special Leases for Grazing and Agriculture: Special Lease 1955-39 and Special Lease 1960-24, both granted under the CLCA on 1 November 1957 and August 1962 respectively. The applicant submitted that since the purpose "agriculture (or any similar purpose) and grazing combined" appears in the list at Sch 1, Pt 1, cl 3(8), they are both "Scheduled interests" with the same extinguishing effect as described above. (i) Area 14: the whole of Area 14 was subject to Crown Lease 1921-9, which was confirmed on 6 September 1921 and forfeited under the CLCA on 26 May 1922. The applicant submitted that the Crown Lease is a "Scheduled interest" on the basis that Mr Oliver did not locate any information which confirmed that the lease satisfied any of the exclusionary conditions in Sch 1, Pt 1, cl 3(10), namely, that the lease both "permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes" and "does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose". It therefore had the same extinguishing effect as described above, so it was submitted. (j) Area 15: Special Lease 1908-1 for Vegetable Garden and Grazing was granted over the whole of Area 15 on 1 October 1908 under the CLCA. Despite its best efforts, the applicant could not determine what provision Special Lease 1908-1 was granted under and whether it was a "secondary interest" within the principles expounded in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) [2012] NSWCA 358. The applicant submitted that if the Special Lease was a secondary interest which was validated under the Crown Lands Amendment (Multiple Land Use) Act 2013 (NSW), then it cannot have any extinguishing effect. 37 However, the applicant submitted that it is not necessary for the Court or parties to resolve this question in these circumstances where the Court may be satisfied that native title does not exist in relation to any part of the Land as it is not claimed by a native title claimant, citing Worimi. 38 The applicant submitted that, if necessary, in light of the above, there is sufficient evidence for the Court to be satisfied on the balance of probabilities that any native title rights and interests over Areas 2-14 have been extinguished by one or more prior acts of the Crown.

Disproving native title 39 The Attorney-General submitted that the applicant bears the onus of proof to establish, on the balance of probabilities, that no native title exists in relation to the Land: see e.g. Deerubbin at [49]. 40 It can establish that native title does not exist in one of two ways: (1) it can prove that no native title exists in the claimed land; or (2) it can prove that any native title which may have existed in the land has been extinguished: Deerubbin at [48]. 41 Where there is an unopposed non-claimant application in which orders are sought for a declaration that native title does not exist and where: (a) notice has been given to the relevant representative body under s 66 of the NTA; (b) public notice has been given under s 66 of the NTA and no response has been received following that notice; and (c) searches by the NNTT establish that there is: (i) no previous approved determination of native title in the land the subject of the application; and (ii) no current application in relation to the land the subject of the application, then the Court is normally "entitled to be satisfied that no other claim group or groups assert a claim to hold native title to the land" and that finding "supports an inference of an absence of native title": Worimi at [46], citing Clifton at [59] per the Full Court. 42 Accordingly, although sometimes expressing reservations about doing so (see e.g. Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 at [10] per Perram J, noting, however, that his Honour ultimately granted the application), the Court has determined that native title does not exist in a number of cases on this basis: see, amongst others, Deerubbin; Griffith Local Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1452; Forster Local Aboriginal Land Council v New South Wales Native Title Services Limited [2006] FCA 1455; Cruse v New South Wales Native Title Services Ltd [2006] FCA 1124; Hillig as Administrator of Worimi Local Aboriginal Land Council v NSW Native Title Services Ltd [2006] FCA 1184.

Power to make orders in the present application 43 Having regard to the applicant's evidence and the procedural matters outline above, and following the approach in Worimi, the Attorney-General submitted that it was open for the Court to be satisfied that there is no native title in the claimed Land, and accordingly to make the declaration sought by the applicant. 44 The Attorney-General submitted that whether the Court is so satisfied is ultimately a question for the Court. The plurality in Badimia People observed at [66] (per North, Mansfield, Jagot and Mortimer JJ): Given that a negative determination is, as we have pointed out above, a determination in rem, it is important that the Court carefully consider such matters before it can be satisfied, on the balance of probabilities, that no native title right or interests exist in relation to a particular area. 45 The Attorney-General contended that it was unnecessary for the Court to consider the issue of extinguishment if the Court was satisfied that there is an unopposed non-claimant application.

NTSCORP's summarised 46 NTSCORP stated that as this non-claimant application has no Aboriginal respondents, NTSCORP is not in a position to oppose the application. 47 NTSCORP submitted that it is not logical for the Court to determine a non-claimant application when an act in land "subject to section 24FA protection" extinguishes native title. NTSCORP submitted that the dissenting opinion of Reeves J expressed at [88] to [113] in Badimia People is correct; namely, contrary to [39] of the plurality's judgment, a non-claimant application is not an application which "necessarily claims" that native title does not exist, rather, the purpose of non-claimant applications is to secure s 24FA protection under Subdivision F, of Division 3, of Part 2 of the NTA. In general, it is not necessary to, and the Court should not, determine non-claimant applications once land is subject to s 24FA protection, so it was submitted. However, the ALRA is anomalous in requiring determinations of native title, either positive or negative, before Aboriginal Land Councils can "deal with land", as that phrase is defined in the ALRA. In that respect, the Court has the power to determine non-claimant applications made by Aboriginal Land Councils for this purpose.

Disposition of the application 48 Having regard to the applicant's evidence and its submissions, the Court is satisfied that native title does not exist in the Land. The Court is dealing with an unopposed non-claimant application. It is satisfied on the evidence before it that the procedural matters set out in [41] have been established. The Court is also satisfied that the applicant has made an adequate response to the results of the searches conducted by the NNTT and that there is neither a previous approved determination or a current application of native title in the Land. The application is unopposed and the Court is entitled to proceed with its determination without a hearing under s 86G of the NTA, a course which was not opposed by any of the parties. The Court is satisfied that there is no evidence that there is native title in the Land and it also infers from the evidence before it concerning the absence of any responses to the notices described in [41] above that there are no persons who presently believe that there is native title in the Land. 49 In these circumstances, it is unnecessary to determine the alternative basis relied upon by the applicant, namely that any native title has been extinguished. Accordingly, it is also unnecessary to address and determine NTSCORP's submissions relating to Badimia People. In any event, it goes without saying that the dissenting of opinion of Reeves J in that case is not binding, but that of the plurality is.

Conclusion 50 As noted above, neither respondent opposes orders being made in, or consistent with, the terms sought by the applicant. The Court is satisfied that the orders sought are within its powers and that it is appropriate to make the determination in the terms sought by the applicant. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.