Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales [2022] FCA 1555 | Case summary

Federal Court of Australia|2022-12-22|Before: Mr J, Ms P, Mr P, Burley J

Native title does not exist in relation to the areas of land and waters in the Parish of Wallarah, County of Northumberland, in the State of New South Wales comprised in and known as: (a) Lot 7340 in Deposited Plan 1166918; (b) Lot 472 in Deposited Plan 755266; (c) Lot 471 in Deposited Plan 755266; (d) Lot 7305 in Deposited Plan 1147507; (e) Lot 466 in Deposited Plan 755266; and (f) Lot 179 in Deposited Plan 755266.
There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 INTRODUCTION [1] 1.1 The parties [1] 1.2 The Land [6] 1.3 The submissions [9] 2 RELEVANT LAW [16] 3 CONSIDERATION [28] 3.1 Jurisdiction [28] 3.2 The prescribed conditions [30] 3.3 Has native title been extinguished by a PEPA? [31] 3.4 Exercise of Discretion [55] 3.5 Decision on the papers [56] 4 CONCLUSION [62]

1.1 The parties 1 The applicant, Darkinjung Local Aboriginal Land Council, is a Local Aboriginal Land Council established under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). It brings an application pursuant to ss 13(1)(a) and 61(1) of the Native Title Act 1993 (Cth) (NT Act) for a determination that native title does not exist in relation to the land and waters identified in six lots of land located in the Central Coast Council local government area in New South Wales, Parish of Wallarah, County of Northumberland (the Land). 2 The applicant relies on two affidavits affirmed by its solicitor, Christopher Turner, and filed written submissions in support of its application. It brings this application because its current and future ability to deal with the Land is restricted as a result of ss 39(9) and 42 of the ALR Act. It does not claim native title to any of the land or waters within the Land; rather, it contends that any native title rights and interests which may have existed were extinguished by one or more prior acts of the Crown. 3 There are six respondents to the application. The first is the Attorney General of New South Wales, who is a party pursuant to s 84(4) of the NT Act in his capacity as the State Minister for NSW as defined in s 253 of the NT Act. He has filed an affidavit of Caitlin Fegan providing supplemental information about the Land. The second respondent is NTSCORP Limited, which performs the functions of a native title representative body for NSW and the ACT pursuant to funding under s 203FE of the NT Act. 4 The third respondent is Kevin Duncan, who claims an interest in the proceedings as a person with a connection to country as a direct descendant of King Birraban and William Bird-Kuttirun, both of the Awaba Peoples of the country now known as the Newcastle, Lake Macquarie and Central Coast regions. The fourth respondent is Shane Frost, who claims to be directly descended from the Awabakal Apical ancestors and asserts native title rights and interests in the Land the subject of the application. The fifth respondent is the Awabakal Descendants Traditional Owners Aboriginal Corporation. The sixth respondent is Awabakal & GuriNgai Pty Ltd. It submits that it has an interest in the proceedings on behalf of the people having a connection to the Land as direct descendants of King Bungaree, King Ned, Queen Margaret and Marakah of the Awabakal and Guringai Peoples of the country now known as the Newcastle, Lake Macquarie and Central Coast regions. 5 All of the respondents have between 19 May and 1 June 2022 filed notices under s 86G of the NT Act, notifying the Court that they do not oppose the making of an order in, or consistent with, the terms sought by the Applicant. All of the respondents with the exception of the fifth have also filed written submissions in relation to the application.

1.2 The Land 6 The Land consists of the following six Lots located in the Parish of Wallarah, County of Northumberland: (a) Lot 7340 of Deposited Plan 1166918; (b) Lots 472 and 471 of Deposited Plan 755266; (c) Lot 7305 on Deposited Plan 1147507; and (d) Lots 466 and 179 on Deposited Plan 755266, 7 The affidavit evidence of Mr Turner establishes that the applicant is the registered proprietor of the Land, which occupies less than 0.77 hectares in area. 8 The Order sought by the applicant is that native title does not exist in relation to the areas of land and waters in the Land.

1.3 The submissions 9 The applicant submits that there has been total extinguishment of native title in respect of the Land, citing Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 at [59] (Moore, Mansfield and Perram JJ) for the proposition that it is not necessary to go behind an act of extinguishment to make good its claim. It submits that each of the Lots in the Land was subject to previous exclusive possession acts (PEPA), which arise under Part 2 Division 2B of the NT Act. In this regard it relies on the operation of ss 23C and 23E of the NT Act in conjunction with s 20 of the Native Title (New South Wales) Act 1994 (NSW) (NSW NT Act) for the proposition that a PEPA attributable to the State of New South Wales (other than a public work) wholly extinguishes native title rights and the interests in the area of the act, and that extinguishment is taken to have happened when the act was done. It submits that s 23B(2) of the NT Act relevantly provides that an act is a PEPA if it is valid, took place before 23 December 1996 and consists of the granting or vesting of, amongst other things, a "Scheduled interest" within s 249C of the NT Act. It submits that each of the Lots within the Land satisfies this description. 10 The applicant otherwise submits that each of the preconditions for the Court to make a determination of native title is satisfied and that the formal requirements of the application have been met. In relation to other matters, it submits that there is significant doubt that either of the fifth or sixth respondents are proper parties to the application within s 84 of the NT Act and contends that there is no proper basis for either to assert that it holds native title in the application area. It submits that it has discharged its burden of proof in relation to the application and that it should be allowed. 11 The first respondent filed submissions setting out legal and evidentiary considerations relevant to non-claimant applications of the present kind and addressing additional aspects relevant to the question of extinguishment by reference to the affidavit of Ms Fegan. Whilst adding some points of detail, the first respondent's submissions support the contention that native title has been extinguished in relation to each of the Lots. The second respondent made separate submissions in support of the application. 12 The third respondent, who was legally represented, filed submissions in which he notes that he proposes to (and subsequently did) file a s 86G Notice, but wished it to be noted that he maintains his claim of interest in and assertion of continuing connection to Awaba Country. 13 The fourth respondent, who was not legally represented, also filed a s 86G Notice which recorded that he does not oppose an order consistent with the terms sought by the applicant. Prior to that he had filed written submissions in which he vehemently opposed any determination by the Court that may conclude that no native title exists or that leads to the extinguishment of, or affects native title over the Land. 14 The fifth respondent filed no written submissions. The sixth respondent adopted a similar position to the third respondent. 15 I would like to acknowledge the assistance provided to the Court by the provision by each party of their submissions.

RELEVANT LAW 16 Section 13(1)(a) of the NT Act provides that an application may be made to the Federal Court of Australia under Part 3 for a determination of native title in relation to an area for which there is no approved determination of native title. A determination of native title is a determination of whether or not native title exists in relation to a particular area of land or waters: s 225. Accordingly, a determination of native title may be a positive determination that native title exists in a particular area, or a negative determination, to the effect that native title does not exist. 17 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 NT Act. However, a non-claimant application seeks a determination that native title does not exist, and therefore those matters in s 225 are not engaged and the Court is not required to make a determination in relation to them: see CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466 at [57] (North, Mansfield, Reeves, Jagot and Mortimer JJ). 18 Section 61(1) of the NT Act, which is in Part 3, provides a table that sets out applications that may be made, and the persons who may make them. Item (2) provides that "a person who holds a non-native title interest in relation to the whole of the areas in relation to which the determination is sought" (emphasis added) is such a person in relation to native title determination applications. 19 Section 253 defines a non-claimant application to mean a native title determination application that is not a claimant application and defines interest to include, in relation to land or waters, "a legal or equitable estate or interest in the land or waters". 20 Section 66(1) of the NT Act provides that, if the Native Title Registrar is given a copy of an application brought under s 61 (by operation of s 63), the Registrar must comply with the requirements of the section. These requirements relevantly prescribe that the Registrar must provide copies of the application and other material documents as set out in s 66(2) to the State or Territory Minister relevant to the area covered by the application (s 66(2)), as well as representative bodies for that area (s 66(2A)). The Registrar is also required, pursuant to s 66(3)(a), to give notice to other potentially interested parties, including any registered native title claimant in relation to the area covered, any registered native title body corporate in relation to the area covered, any representative Aboriginal/Torres Strait Islander body for the area covered, and any local government body. In addition, pursuant to s 66(3)(d), the Registrar must give notice to the public "in the determined way of the application". Section 66(10) requires a notice under s 66(3)(a) or (d) to include statements about the possibility of a s 24FA protection, the opportunity for only one claim to be made to the same area of land, and the time limit within which one may elect to become a party. 21 By s 84(3), any person with an interest in relation to the land (including a claimed native title interest) who gives notice to the Court within the period specified in the notice under s 66 is automatically a party to the proceeding in respect of the native title determination application. 22 Section 86G of the NT Act is entitled "Unopposed applications" and provides: 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. 23 In considering an unopposed non-claimant application the question for the Court is whether the applicant has discharged its burden of proof that no native title exists in the claim area: Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41 at [44] (Jagot, Griffiths and Mortimer JJ). 24 In Queensland Rifle Association Inc v State of Queensland [2021] FCA 110, O'Bryan J at [22]-[23] gave a summary of three overarching principles emerging from recent authority, including Mace, which summary I gratefully adopt (citations omitted): (a) First, whether there is a contradictor to an application for a negative determination 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? The burden of proof is the balance of probabilities. (b) Second, whether the applicant has discharged its burden depends upon the facts of the case as established by the evidence before the Court, including particularly 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. (c) Third, 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 NT Act. The fact that a determination of native title (positive or negative) binds the world and does not operate only between the parties warrants heightened scrutiny by the Court about its state of satisfaction both that the onus of proof has been discharged and that the terms of the determination to be made are supported in all respects by the findings. 25 Applications for a negative determination can vary greatly. At one end of the evidentiary scale, there may be no need to go beyond proof of an extinguishing grant of freehold title (Mace at [49]). As the Full Court said in Worimi: 58 In an application such as the present, it is not necessary routinely for a non-claimant applicant such as the Land Council to prove (probably by anthropological evidence) that native title rights and interests existed at settlement, the community or group that possessed and enjoyed them, and their detailed content, and then to prove the circumstance or circumstances which led to each of those rights and interests ceasing to be possessed or enjoyed by any contemporary Aboriginal persons or groups. That might be necessary in certain circumstances. But it cannot be necessary in every case, as was argued on behalf of Worimi. It will depend on the nature of the evidence which is sought to be adduced by the non-claimant applicant and by any respondents. It may depend on the evidence as to the nature and location of the land in issue. For example, in an urban environment where valid freehold title has been issued by the Crown over the land in issue, that title would necessarily have extinguished any native title rights and interests which previously existed over that Land. There would be no need to go beyond proof of the extinguishing grant. In other instances, there might be an issue as to the nature or extent of the extinguishment of native title rights and interests. Each case has to be addressed on its particular facts. 59 Indeed, it was accepted by counsel for Worimi at the hearing of the appeal, that, for example in the circumstances of a non-claimant application over certain land, if there was total extinguishment over that land by the grant of a freehold title, it would not be necessary to "go behind" that fact and adduce evidence as to the pre-sovereignty rights and interests by way of genealogical or other expert evidence. Such a step would be unnecessary. See also Mace at [46]-[47]. 26 At the other end of the scale are contested cases in which an Indigenous respondent gives evidence about that person's connection, under traditional law and custom, to the land in question: Mace at [51]. In the present case, the outcome of the application is to be determined by whether or not it may be concluded that native title has been extinguished, having regard to the evidence adduced in support of that proposition. 27 The Court must act on evidence and does not speculate about the possibility of the existence of native title rights and interests: Mace at [52]-[54]. As such, an application for a negative determination does not involve any general inquiry into what native title rights and interests may have existed at the time of sovereignty, or effective sovereignty; nor any general inquiry into how those rights and interests may or may not have continued: Mace at [55].

3.1 Jurisdiction 28 The applicant is the holder of an estate in fee simple over each of the Lots that comprise the Land and has standing to bring the application under s 61(1) of the NT Act because it has a non-native title interest in relation to the whole of the area in respect of which the determination is sought: see, for instance, Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales [2021] FCA 356 at [22] (Perry J). 29 As Jagot J observed in Jerrinja Local Aboriginal Land Council v Attorney General of the State of NSW [2013] FCA 562 at [2], the interaction between the ALR Act and the NT Act means that a land council has no alternative but to seek an approved determination that no native title exists: see also eg Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936 at [17] (Perry J). Accordingly, this is a matter in which the Court must make a determination.

3.2 The prescribed conditions 30 The evidence demonstrates that the following formal matters have been satisfied: (a) The application is a native title determination application made under s 61 of the NT Act. The applicant is the registered proprietor of the Land and is accordingly a person who holds a non-native title interest in relation to it, for the purposes of s 61; (b) There is no overlap between the Land and any previously approved determination of native title for the purpose of ss 13(1) and 68; (c) The Court has jurisdiction to hear and determine the application under s 81; (d) The relevant State Minister in the form of the Attorney General and representative body in the form of NTSCORP have received notice of the application; (e) Public notice of the application was given by way of published notices on 2 December 2020 and on 11 August 2021 in accordance with s 66(3) of the NT Act. The notification periods specified in those public notices was from 16 December 2020 to 15 March 2021 and 25 August to 24 November 2021 respectively, in accordance with s 66(1). The notice periods have expired; (f) No native title claimant applications were filed during or subsequent to the notification periods, nor were any notices of intention to become a party filed other than by the respondents to the application.

3.3 Has native title been extinguished by a PEPA? 31 I now turn to consider whether it is appropriate to make an order as sought in the application. The question is whether the applicant has discharged its burden of proof that no native title exists in the claim area: Mace at [44]. In this respect I take into account the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests. For the reasons set out below, I consider that the applicant has discharged its burden of proof. 32 The present application is made in the prescribed form in accordance with the requirements of s 61(5) of the NT Act. 33 The applicant advances it case solely on the basis that any native title that did exist in respect of the Land has been extinguished. 34 Section 11 of the NT Act provides that native title is not able to be extinguished contrary to the Act. 35 Section 237A of the NT Act defines "extinguish" in relation to native title as meaning: …permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect. 36 Section 23C(1) of the NT Act provides in relation to acts other than public works: (1) If an act is a previous exclusive possession act under subsection 23B(2) (including because of subsection 23B(3)) and is attributable to the Commonwealth: (a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and (b) the extinguishment is taken to have happened when the act was done. 37 Section 23E provides for the confirmation by States and Territories of the extinguishing effect of PEPAs attributable to States and Territories. 38 The State of New South Wales has, by s 20 of the NSW NT Act confirmed the extinguishing effect of PEPAs attributable to the State. Accordingly, the effect of that section and s 23E of the NT Act, read together, is that a PEPA attributable to the State of New South Wales extinguishes native title rights and interests. 39 Relevantly, by s 23B(2) of the NT Act, an act is a "previous exclusive possession act" if it is (a) valid; (b) took place on or before 23 December 1996; and (c) consists of the grant or vesting of a "Scheduled interest". Subject only to exceptions that are not presently relevant, s 249C of the NT Act provides that anything set out in Sch 1 is a Scheduled interest. Part 1 of Sch 1 addresses New South Wales. It includes within the list provided: (a) A special lease under ss 75 or 75B of the Crown Lands Consolidation Act 1913 (NSW) which permits the lessee to use the land or waters covered by the lease solely or primarily for the purposes listed in item 3(8) of Sch 1; (b) A Crown lease under the Crown Lands Consolidation Act subject to certain exceptions identified in item 3(10) of Sch 1; and (c) A suburban holding under the Crown Lands Consolidation Act: item 3(11) of Sch 1. 40 In relation to Lot 7340, the evidence of Mr Turner establishes that the applicant is its registered proprietor. A comparison of the plans demonstrates that Lot 7340 was formerly part of portion 62 in the Parish of Wallarah, County of Northumberland. Mr Turner exhibits a status report prepared by the New South Wales Department of Planning, Industry and Environment dated 11 June 2021 that identifies the history of this land. In it, two relevant leases are identified. 41 The first is identified in a gazettal notice dated 20 December 1935 for the grant of special lease 1935 - 1937 to Cecil Barnes under s 75 of the Crown Lands Consolidation Act (as it then was) in relation to "Grazing, agriculture and poultry farm" (Special Lease). "Grazing" and "agriculture" are purposes that fall within the list of Scheduled interests identified for a "special lease" under ss 75 or 75B of the Crown Lands Consolidation Act. 42 However, the first respondent in his submissions quite properly points to a nuance that warrants observation. It is that s 75 of the Crown Lands Consolidation Act in the form that it was in 1935 when the Special Lease was granted did not include within it a specific provision enabling the Minister to lease areas of land for any of the three purposes identified in the grant of Special Lease to Mr Barnes. Instead, it provided a list of purposes and then provided that such a lease may be granted "… or for any purpose declared by the Minister by notification in the Gazette to be a purpose within this section …". He draws attention to the fact that "grazing" and "agriculture" were proclaimed by the Governor in the Gazette to be a purpose within s 90 of the predecessor to the Crown Lands Consolidation Act. He also notes that s 3 of the Crown Lands Consolidation Act provides that all prior proclamations (relevantly) prior to the Act continue to apply. He submits that the proclamations made for special leases under s 90 have effect as declarations of purpose for special leases under s 75 by reason of s 3. A submission to similar effect was accepted by Griffiths J in Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney General of New South Wales [2021] FCA 169 at [666]. 43 I respectfully agree with the decision in Ohlsen at [666] and accept the submissions advanced by the first respondent. The consequence is that I find that the Special Lease was validly granted at the time insofar as it concerned grazing and agriculture. 44 This leaves, however, the purpose of "poultry farm" identified in the Special Lease. The Attorney-General notes that the purpose of "poultry farm" was never gazetted individually. Rather it was gazetted in pursuance of the provisions of the Crown Lands Act 1884 (NSW) by Henry Robert, Viscount Hampden, Governor, with the advice of the Executive Council in a form that approved of and declared each of "Bee and Poultry Farm" and also "Pig and Poultry Farm" to be a "[p]urpose" within s 90 of the Crown Lands Act 1884. 45 The question then arises as to whether "poultry farm" alone can be considered to have been a gazetted purpose. The Attorney-General submits that a literal construction of the purpose - which requires combined bee and poultry or combined pig and poultry farm use - does not serve to meet the policy or purposes of the Crown Lands Consolidation Act enacted in 1913. He submits, however, that the expression "any purpose declared by the Minister" in s 75 is to be understood by reference to the use to which the land was to be put and the activities that were to occur in pursuit of those purposes, rather than by the literal interpretation of the nomenclature by which those purposes are described. Accordingly, the proclamations that were gazetted are to be understood to permit three different types of uses, each of which is a purpose for which a special lease could have been granted, namely bee keeping, or farming poultry or pigs. 46 I accept that construction. It is apparent that the provisions of the Crown Lands Consolidation Act when enacted in 1913 were intended to consolidate the legislative regime. Its provisions were enacted to address the management and administration of lands in the State by reference to the intended use of particular areas of land. The three uses identified in the gazetted proclamations are activities that are apt to occur in putting the land identified to use, as either type of farm (bee, pig or poultry). The proclamations provide no indication that it was the executive intention that a composite purpose be considered to be a single purpose, which would be a strange result. 47 Furthermore, the authorities establish that a flexible, common sense approach focusing upon substance rather than form has been adopted in determining whether a lease granted for a particular purpose or purposes is a Scheduled interest, despite the purpose of the lease not being expressed in identical terms to the corresponding purpose in Sch 1 to the NT Act: Leeton and District Local Aboriginal Land Council at [40]. This approach has led the Court to concluding that a precise correlation of language need not be found to exist between the grant for one purpose and the items listed in Sch 1. One apposite instance is identified in 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, where Perram J considered that a purpose specified as "tourist accommodation and facilities" should not be considered to require a business involving both tourist accommodation and tourist facilities, such that a lease for tourist accommodation which did not include facilities would not be included. Instead, it was an instance where "and" really should be understood to mean "and/or": at [30]. 48 Accordingly, I am satisfied that the Special Lease granted to Mr Barnes in 1935 was a special lease under s 75 of the Crown Lands Consolidation Act permitting him to use the land solely or primarily for the purpose of grazing, agriculture and poultry farm. I do not consider that the lease was rendered invalid because a specific purpose of the lease was "poultry farm". The Special Lease is in respect of a Scheduled interest within s 249C of the NT Act. This has the effect of extinguishing native title in the land identified as Lot 7340. 49 The second lease upon which the applicant relies is Special Lease 1951-19 Gosford, which was notified in the Gazette on 6 March 1953 and granted to Warwick John Barnes for the purpose of "Agriculture, orchard and poultry farm". It is not materially different in its terms to the first lease. Having regard to my conclusion in relation to the Special Lease, it is unnecessary for me to address the second lease save to observe that the same conclusion applies to it. 50 In relation to Lot 471 on Deposited Plan 755266, the evidence of Mr Turner establishes that the applicant is the registered proprietor of the lot. Search results identify that it was subject to Suburban Holding Purchase 1956-35 Gosford. But whilst a Suburban Holding is a Scheduled interest under item 3(11) of Sch 1 to the NT Act, a Suburban Holding Purchase is not. The applicant does not exhibit, because it has not located in its searches, a Suburban Holding in relation to Lot 471. However, according to the Crown Plan exhibited, Lot 471 was previously known as Block E in Suburban Holding Area 2434. Suburban Holding Area 2434 was notified in the NSW Government Gazette on 27 April 1956. This indicates that Block E (now Lot 471) was first the subject of a Suburban Holding before it became a Suburban Holding Purchase. Further, under the law in force at the time, only the holder of a Suburban Holding could apply to purchase the land: s 129B(1) of the Crown Lands Consolidation Act. These matters are sufficient to satisfy me that Lot 471 had been the subject of a Suburban Holding before it was the subject of a Suburban Holding Purchase. The consequence is that the Suburban Holding extinguished native title pursuant to item 3(11) of Sch 1 of the NT Act. 51 In relation to Lot 472 on Deposited Plan 755266, the evidence of Mr Turner establishes that the applicant is the registered proprietor. A land status report exhibited to Mr Turner's affidavit identifies that the land was the subject to Suburban Holding 1957-16 Gosford which was granted to George Cyril Calder on 17 September 1957. The result is that native title in Lot 472 has been extinguished. 52 In relation to Lot 7305 on Deposited Plan 1147507, the land identified now as Lot 7305 was formerly a section of Crown Plan 8162-2111 which was proximate to a part identified as lot 467. The land status report for Lot 7305 records that a number of interests were granted in relation to it, including Suburban Holding 1956-30 Gosford, which occupied the entirety of portion 467. I am satisfied that the grant of the Suburban Holding falls within item 3(11) of Sch 1 to the NT Act, and accordingly consider that the applicant has established to the requisite standard that native title has been extinguished in relation to Lot 7305. Although the applicant submits that two further potential interests are identified in the land status report to establish extinguishment, having regard to my conclusion in relation to the first interest, it is not necessary to consider these. 53 Lot 466 and Lot 179 of Deposited Plan 755266 together made up Portion 179 in the Parish of Wallarah, County of Northumberland before Portion 179 was subdivided. The tenure card exhibited to Mr Turner's second affidavit indicates that Suburban Holding 1925/3 Gosford was granted in respect of the whole of Portion 179. Accordingly, native title has been extinguished in respect of these lots. 54 Having regard to the evidence of extinguishment, I am satisfied that the applicant has discharged its onus of establishing, on the balance of probabilities, that native title does not exist over the determination area and that it is appropriate to make the determination sought by the applicant.

3.4 Exercise of Discretion 55 There are no matters arising from the evidence in this case that would render it inappropriate to make a negative determination. Bearing in mind the caution which should be exercised before making a determination that no native title exists even if proved on the balance of probabilities, I nonetheless consider that it is appropriate to exercise the discretion to grant relief in such terms given that, in the absence of any such determination, no dealings may be undertaken with respect to the Land.

3.5 Decision on the papers 56 For the following reasons, I have determined that it is appropriate to make the present decision on the papers and without a hearing. 57 Each of the respondents has filed a notice in writing within the terms of s 86G(1)(a) NT Act that they do not oppose an order in or consistent with the Order sought by the applicant. 58 However, not all of the respondents took the position of the first and second respondents, which was actively to support the application. The third respondent filed a submissions on the same day as his s 86G notice which record that he wishes it to be noted that he maintains his claim of an interest in and connection to Awaba Country. The sixth respondent also filed his written submission on the same day as his s 86G notice, wishing it to be noted that he claims a continuing connection to Awabakal and Guringai Country. Neither submission suggests any opposition to the application as such. I take these submissions to be an indication that, but for their acceptance that by operation of the NT Act any native title has been extinguished, they would have maintained a claim of native title in respect of the Land. 59 The position of the fourth respondent is somewhat different. His written submission was filed on 20 May 2022, which was a week before he filed his notice under s 86G that states in terms that he does not oppose the making of an order as sought by the applicant. In my view it may be inferred that his expression of vehement opposition to the making of the orders set out in his written submissions changed in the period such that he too accepted that the legal consequence of the matters set out in the evidence and submissions advanced by the applicant is that native title would be extinguished, regardless of the validity of any claim to native title that he may advance. I accept, however, that it is likely that his acceptance of that position was reluctant. 60 Having regard to these matters, I consider that the requirements of s 86G(1)(a) of the NT Act are satisfied in that the making of the application is unopposed. For the reasons identified earlier, I am also satisfied that the terms of the Order sought by the applicant are within the power of the Court within s 86G(1)(b). 61 Having regard to these matters I was satisfied that it is appropriate for the application to be determined on the papers, without the need for a hearing.

CONCLUSION 62 For the reasons set out above, I consider that the applicant has discharged its burden of proving that any native title in the Land has been extinguished and that it is appropriate to make a determination that no native title exists in the Land. There will be no order as to costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

SCHEDULE OF PARTIES NSD 1189 of 2020 Respondents Fourth Respondent: SHANE FROST Fifth Respondent: AWABAKAL DESCENDANTS TRADITIONAL OWNERS ABORIGINAL CORPORATION Sixth Respondent: AWABAKAL & GURINGAI PTY LTD

Crown Lands Act 1884(NSW)s 90

Crown Lands Consolidation Act 1913(NSW)ss 3, 75, 75B, 129B

Native Title Act 1993(Cth)ss 11, 13, 23B, 23C, 23E, 24FA, 61, 63, 66, 68, 84, 86G, 203FE, 225, 237A, 249C, 253, Sch

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

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Judgment (13 paragraphs)

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