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

Appropriateness of the orders sought by the applicant 22 To make the orders sought by the applicant, the Court must be satisfied on the balance of probabilities that native title does not exist in each of the Areas, 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. 23 The applicant cited the following passage from Deerubbin Aboriginal Land Council v Attorney-General of NSW [2017] FCA 1067 (Deerubbin) at [53], which it described as the "general approach to applications of this kind": In accordance with the guiding principles identified in [Worimi Local Aboriginal Land Council v Minister for Lands for NSW & Anor (No. 2) [2008] FCA 1929; 181 FCR 300], many non-claimant applications have been granted on the basis of proof of the formal requirements of the NT Act only, in the absence of any detailed evidence about the existence or otherwise of native title (see, for example, Application for the Determination of Native Title made by the Metropolitan Local Aboriginal Land Council [1998] FCA 402; Deniliquin Local Aboriginal Land Council [2001] FCA 609 and Kennedy v Queensland [2002] FCA 747; 190 ALR 707)… 24 The applicant stated that it therefore relies solely on the basis set out in [22(a)] above and says that the evidence supports an inference of an absence of native title in each of the Areas because: (a) the prescribed procedures referred to in [12] above have not elicited any claimant applications in any of the Areas within the notification period or subsequently, nor has any person sought to be joined to the application as a respondent to assert that native title exists in any of the Areas; (b) The overlap analysis report provided by the NNTT in respect of Darkinjung #4 does not reveal any previous approved determinations of native title made in relation to any part of the Areas, for the reasons summarised above. 25 In these circumstances and in the absence of a "cogent assertion of native title by a competent application" made pursuant to s 61(1) of the NTA (citing Glenvale Holdings Pty Ltd v State of Queensland [2018] FCA 1255 at [18] per Collier J and Worimi Local Aboriginal Land Council v Attorney General of New South Wales [2018] FCA 1329 at [99]), the applicant submitted that the Court can be satisfied, on the balance of probabilities, that native title does not exist in the Areas.

The Attorney General's submissions summarised 26 The Attorney General submitted that the matters in ss 86(1)(a) and (b) of the NTA are "jurisdictional preconditions" that the Court must be satisfied of in order to make an order pursuant to s 86G (the terms of s 86G are set out at [16] above). 27 For the purposes of s 86G(1)(a), the Attorney General does not oppose the application and has lodged notices under s 86G(2). 28 In respect of s 86G(1)(b), the Attorney General considers that the Court has power to make the orders sought by the applicant because: (a) An application may be made to the Court for a determination of native title in relation to an area for which there is no approved determination of native title: NTA, s 13. This Court has jurisdiction to hear and determine such an application: NTA, s 81. (b) A determination of native title is a determination whether or not native title (as defined by NTA, s 223) exists in relation to a particular area: NTA, s 225. As this application seeks a determination that native title does not exist, the Court is not required to determine the matters at paragraphs (a) to (e) of s 225 of the NTA: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466 (Badimia People) at [57]. (c) The applicant has a "non-native title interest" in the Areas and so has standing to make such a non-claimant application (as defined by NTA, s 252) for the purposes of s 61(1) of the NTA. (d) The application was made in the prescribed form in accordance with s 61(5) of the NTA. (e) Notice of the application was given by the NNTT on behalf of the Native Title Registrar to the relevant State Minister and the Crown Solicitor and NTSCORP on 1 December 2017, in accordance with ss 66(2)-(2A) of the NTA. Notice of the application was given by way of published notices on 8 and 9 August 2018, in accordance with s 66(3) of the NTA. The notification period specified in those public notices was from 22 August 2018 to 21 November 2018, in accordance with s 66(10) of the NTA. (f) Accordingly, the Attorney General agrees that all formal requirements of ss 13, 61 and 66 of the NTA have been complied with. (g) As the application is not opposed by the Attorney General or NTSCORP, it is open to the Court to determine this application on the papers pursuant to s 86G(1) of the NTA. 29 The Attorney General submitted that in circumstances such as the present proceedings where the statutory scheme regarding notice of the application has been complied with and where no claim to hold native title to the Areas has been asserted, it is open for the Court to be satisfied that no native title exists in the Areas. Such an approach has been taken by this Court in a number of cases. However, for completeness, the Attorney General noted that the Court has, in certain cases, expressed reservations about this approach, or has looked to positive evidence that no native title is known to exist, or that the local representative body has resolved that there is no such interest.

NTSCORP's submissions summarised 30 NTSCORP summarised the applicant's submissions as relying solely on the formal requirements of the NTA and the absence of any assertion of native title by a native title claimant to prove that, on the balance of probabilities, native title does not exist in the Areas. NTSCORP noted that the applicant has not filed and does not rely on any evidence of Aboriginal people who have a cultural association with or traditional knowledge in relation to the Areas. 31 NTSCORP submitted that the Court has previously placed a high importance on evidence from local Aboriginal people with traditional knowledge in relation to the area subject to a non-claimant application, citing Gandangara Local Aboriginal Land Council v Attorney-General (NSW) [2013] FCA 646 (2013 Gandangara) at [20]-[22] per Griffiths J, Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 (2011 Gandangara) at [8]-[10] per Perram J and Ngambri Local Aboriginal Land Council v Attorney-General (NSW) [2012] FCA 1484 at [15] per Jagot J. 32 NTSCORP noted that such non-claimant applications "are usually accompanied by evidence of a person who might be expected to have knowledge of the existence or otherwise of a native title interest", citing 2011 Gandangara at [8], and submitted that such evidence provides a greater certainty regarding the importance that local Aboriginal people place on the land subject to the non-claimant application. The lack of any native title application or joinder of Indigenous parties asserting a native title interest to the land does not provide certainty that the land is not of cultural or traditional importance to Aboriginal people. 33 For these reasons, NTSCORP submitted that when asserting that native title does not exist in relation to an area, the applicant ought to adduce evidence from local Aboriginal people and/or groups that have a cultural association with, or traditional knowledge relating to, the Areas. However, as the three subject Darkinjung non-claimant applications have no Aboriginal respondents, NTSCORP is not in a position to oppose the applications and has therefore filed notices pursuant to s 86G of the NTA. 34 NTSCORP also made additional submissions with respect to the correctness of Reeves J's dissenting judgment in Badimia People (see Darkinjung #1 Determination at [47]). It is unnecessary to determine NTSCORP's submissions on this aspect, in circumstances where the dissenting of opinion of Reeves J is not binding (see Darkinjung #1 Determination at [49]).

Disposition of the applications 35 The difficulties presented by s 42 of the ALRA and the related necessity for a negative determination of native title under s 61 of the NTA were recently discussed by Reeves J in Pate v State of Queensland [2019] FCA 25 (Pate). 36 I respectfully agree with his Honour that the relevant general approach was authoritatively laid down by the Full Court in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 (Worimi Full Court). There, the Full Court said at [80]: 80. It does not follow that the present decision is made merely on conjecture and not on evidence. That is a matter to be decided on consideration of the reasons of the primary judge and the whole of the evidence. It is obviously a difficult task to prove a negative proposition: Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 641-2. It may be established by direct evidence, circumstantial evidence, by inference or by a combination of those things. It must nevertheless be more than a scintilla (Apollo Shower Screens (1985) 1 NSWLR 561 at 565). It may be determined having regard to the power of the respective parties to adduce relevant evidence, and the extent to which they do so. In this matter, it was mainly a combination of the direct evidence of the Aboriginal witnesses and the inference drawn from the absence of a cogent assertion of native title by a competent application under s 61 of the NT Act, after the notification process, which supported the conclusion of the primary judge. 37 In Deerubbin, I stated some relevant principles, which I considered to be consistent with Worimi Full Court, at [52] and [53] as follows (emphasis added): 52. Where an unopposed non-claimant application in which orders are sought by consent of the parties and: (a) notice has been given to the relevant representative body under s 66 of the NT Act; (b) public notice has been given under s 66 of the NT Act and no response received following that notice; and (c) National Native Title Tribunal (NNTI) searches 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, 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 No 2 at [46] citing Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 at [59]). 53. In accordance with the guiding principles identified in Worimi No 2, many non-claimant applications have been granted on the basis of proof of the formal requirements of the NT Act only, in the absence of any detailed evidence about the existence or otherwise of native title (see, for example, Application for the Determination of Native Title made by the Metropolitan Local Aboriginal Land Council [1998] FCA 402; Deniliquin Local Aboriginal Land Council [2001] FCA 609 and Kennedy v Queensland [2002] FCA 747; 190 ALR 707). That is not to say, however, that every case must be approached by reference to such cases. Primacy has to be given to the statutory language. The cases simply provide general guidance on how those powers should be exercised and applied by reference to the particular facts and circumstances of each individual case. There is a danger in viewing statements in individual cases too literally and as though they provide the answer in all cases. A more sophisticated approach is required, one which ultimately focuses upon the relevant statutory provision as applied in the particular facts and circumstances of an individual case. As McHugh JA said in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248: In Cassell & Co Ltd v Broome [1972] AC 1027 at 1085, Lord Reid warned of the danger of placing reliance on the literal words of particular judgments instead of searching for the applicable principle. His Lordship said: … experience has shown that those who have to apply the decision of other cases and still more those who wish to criticise it seem to find it difficult to avoid treating sentences and phrases in a single speech as if they were provisions in an Act of Parliament. They do not seem to realise that it is not the function of noble and learned Lords or indeed of any judges to frame definitions or to lay down hard and fast rules. It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive. 38 I do not view Pate as establishing a different approach. Rather, Reeves J's decision to dismiss the application for a negative determination of native title reflected the particular facts and circumstances of that case. In particular, it is notable that the land the subject of the application there had previously been the subject of three separate native title determination applications, one of which had been accepted for registration under Pt 7 of the NTA. This meant that, to achieve that registration, the application must have met the conditions set out in s 190B of the NTA. As Reeves J pointed out at [6], one of those conditions is that the Registrar must be satisfied that "the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion". In respect of that particular earlier application, it is evident that the applicant failed to comply with the Court's orders which were made on 23 October 2008, with the consequence that the application was dismissed on 23 December 2008. The historical fact that the application had previously been accepted for registration remained. 39 It is perhaps unsurprising that, in those circumstances, Reeves J refused the application in Pate because his Honour was not satisfied that the applicant had adduced sufficient evidence to discharge her onus to prove, on the balance of probabilities, that no native title existed in the subject land. His Honour also noted that no evidence had been given from the Native Title Representative Body for the area expressing its views as to whether native title rights and interests were likely to exist in the subject land, noting in particular the terms of s 203BJ(b) of the NTA. At [59] and [60], Reeves J set out the reasons why he considered that the applicant had failed to discharge her evidentiary onus in the particular facts and circumstances there. 40 As noted above, NTSCORP did not oppose the applications here, not the least because it said that it was not in a position to do so in circumstances where there were no Aboriginal respondents. It drew attention, however, to previous cases in which the Court had emphasised the importance of evidence from local Aboriginal people with traditional knowledge of an area the subject to a non-claimant application, including 2011 Gandangara at [8]-[10] per Perram J; Ngambri Local Aboriginal Land Council v Attorney-General (NSW) [2012] FCA 1484] at [15] per Jagot J and 2013 Gandangara at [20]-[22] per Griffiths J. There was no such evidence in this case. 41 I respectfully agree with NTSCORP's submission regarding the potential importance of evidence from local Aboriginal people. It is desirable in many cases that there be such evidence but, as noted above, each case necessarily turns on its own particular facts and circumstances. 42 For the following reasons, I am satisfied that the Court should make the determinations as sought by the applicant here. 43 The Court is satisfied on the evidence that the relevant procedural matters have been established and that there is neither a previous approved determination nor a current application of native title in respect of the relevant land. The applications are unopposed. I am also satisfied that this is an appropriate case in which to proceed to determinations without a hearing under s 86G of the NTA, a course which was not opposed by any of the parties. 44 The Court is satisfied that there is no evidence that there is native title in any of the Areas and I consider that it may reasonably be inferred from the evidence as to the lack of any responses to the public notices described in [12] above that there are no persons who currently believe that native title does exist in any of the Areas. It is relevant to also take into account the fact that the applicant is a Local Aboriginal Land Council for the purposes of the ALRA. That fact is not determinative, however, some weight might be given to the fact that, under s 53 of the ALRA, only adult Aboriginal persons, as defined, who are listed on the Local Aboriginal Land Council membership roll are eligible to be members of the Local Aboriginal Land Council for that area. "Adult Aboriginal person" is defined in s 4 of the ALRA to mean "an Aboriginal person who has attained the age of 18 years". "Aboriginal person" is defined in s 4 to mean a member of the Aboriginal race of Australia, who identifies as an Aboriginal person, and is accepted by the Aboriginal community as an Aboriginal person. 45 As to the overlap analysis report in Darkinjung #4 (see [19]-[21] above), I note that the overlap between that application and the previous native title determination (NND2002/003) is negligible. It is correctly described as a "technical overlap" which is not dissimilar to that which arose in the Darkinjung #1 Determination. I accept the applicant's submission, as summarised in [21] above, that this "technical overlap" does not prevent the Court from making a determination in respect of the Darkinjung #4 application, notwithstanding ss 13(1) and 68 of the NTA.

Conclusion 46 For these reasons, the Court is satisfied that the orders sought are within its powers and that it is appropriate to make the three determinations in the terms sought by the applicant. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.