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[2010] FCA 745
plaintiff. Order made that native title does not exist in relation to the land comprised in New South Wales Department of Lands Certificate of Title folio identifier 98 of Deposited Plan 1036338 (see Orders...
Eden Local Aboriginal Land Council applied to the Federal Court for a declaration under s 61 of the Native Title Act that no native title exists over a particular parcel of land in Bega Valley Shire. The Registrar's notices were given, no claimants or other parties appeared within the notice period, and the respondents indicated the application was unopposed. The Court, satisfied of jurisdiction under s 81 and that the Aboriginal Land Rights Act (NSW) substituted provisions applied, ordered that native title does not exist in relation to the land.
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1,895 words · generated 10/07/2026
Eden Local Aboriginal Land Council (Eden LALC) brought a non-claimant application under section 61 of the Native Title Act 1993 (Cth) seeking a declaration that native title does not exist in relation to a specific parcel of freehold land in Bega Valley Shire, recorded as NSW Department of Lands Certificate of Title folio identifier 98 of Deposited Plan 1036338 ([1]). The application was supported by an affidavit of Mr Oswald Cruse, Chairperson of Eden LALC (sworn 14 May 2010) which the Court accepted and which included Mr Cruse's personal knowledge that he was not aware of hunting, fishing, food gathering or other exercise of native title rights on the land ([3], [24]).
2 cited instruments linked from this judgment.
The Eden LALC proposed to lease part of the land to Telstra pursuant to an agreement for lease dated 3 September 2009; counsel told the Court the proposed lease was for three years, although the lease itself was not in evidence ([4]-[5]). Eden LALC had resolved at an extraordinary general meeting on 25 July 2008 that the land was not culturally significant and had endorsed the lease ([6]).
Statutory notices required by the Native Title Act were given by the Native Title Registrar; the notice period expired on 29 March 2010 with no native title claimant appearing or notifying an interest ([21]-[22]). The respondents (NTSCORP Limited and the NSW Minister for Lands) notified the Court in writing that the application was unopposed and signed proposed short minutes of order; there was no appearance in Court ([26]). On that basis, and being satisfied the Court had jurisdiction under s 81, Jacobson J ordered that native title does not exist in relation to the land ([28], [29]-[30]).
The judgment also addressed which NSW Aboriginal Land Rights Act provisions applied to the proposed land dealing, concluding that the substituted provisions (ss 42 and 42E) applied to the present application by reason of Schedule 4 Part 9 cl 50-51 and cl 51(3) of the amending Act ([10]-[14]). The Court recorded that s 42E(2)(a) exempts from NSW ALC approval a lease for a period of less than three years, a fact relevant to the parties' dealings ([17]).
The decision rests on three interlocking points recorded in the judgment.
Procedural compliance and unopposed status: The Court was satisfied that the Native Title Registrar had given the required notices under s 66, the statutory notice period had expired with no claimant appearing, and the respondents notified the Court the application was unopposed and signed the proposed short minutes of order ([21]-[22], [26]). Under the Native Title Act, that factual matrix allows the Court to proceed to determine a non-claimant application where jurisdiction is established; Jacobson J explicitly records the application was unopposed within s 86G(2) and that the Court had power to make the orders sought under s 81 ([26], [28]).
Factual evidence of absence of native title activity: The applicant relied on an affidavit from Mr Cruse that he had long acquaintance with the land and was not aware of any exercise of native title rights on the land (hunting, fishing, food gathering etc.) ([24]). That evidence, together with the absence of any claimant appearing and the Registrar's search confirming there was no determination of native title over the land, supported the Court's readiness to make the non-existence declaration ([22]-[24]).
Statutory context for land dealings: The Court analysed the amendments to the Aboriginal Land Rights Act (NSW) and Schedule 4 to conclude that ss 42 and 42E (as substituted) applied to the dealing in issue. Clause 51(3) of Schedule 4 provided that where former land dealing requirements were not complied with, the new provisions apply to the dealing entered into before commencement. Jacobson J concluded Division 4 (containing ss 42 and 42E) governed the present application ([10]-[14]). The content of s 42E(2)(a), that leases for less than three years do not require NSW ALC approval, was expressly noted as relevant to the practical steps the LALC intended to take ([17], [18]).
Because the statutory prerequisites were met and the factual evidence and procedural posture favoured making the order, the Court made the declaration that native title does not exist in relation to the land ([29]-[30]).
Before this judgment: The Native Title Act regime permitted non-claimant applications under s 61 for a declaration of non-existence of native title. Judicial guidance existed on procedure and formalities. The Eden decision applies well-established procedural law: compliance with s 66 notice, unopposed application under s 86G(2), and jurisdiction under s 81 are necessary preconditions to make such a determination ([21]-[26], [28]). Jacobson J relied on prior authorities that made similar orders (Peter Hillig, Deniliquin, Kennedy), confirming established practice (see [29]).
After this judgment: The decision is in line with prior Federal Court decisions, and it applies the Native Title Act and the relevant NSW Aboriginal Land Rights Act amendments to a fact pattern of an unopposed non-claimant application. The judgment confirms that where the Registrar's notices are given, the notice period expires with no claimant appearing, and the Court has jurisdiction, a s 61 non-claimant application may be determined in favour of the applicant. It also clarifies the application of Schedule 4 definitions to bring substituted ss 42 and 42E into play for pre-commencement dealings where former requirements were not complied with ([10]-[14]).
Note: This judgment records reliance on earlier decisions (Peter Hillig [2005] FCA 1713, Deniliquin [2001] FCA 609, Kennedy v Queensland (2002) 190 ALR 707) for the proposition that orders of this kind have previously been made ([29]). The judgment itself does not analyse later authority that might have distinguished or developed these points.
[1] "This is an application under section 61 ... for a determination that no native title exists..."
Plain English: The applicant asked the Court to officially declare that there are no native title rights over the specified piece of land.
[10]-[14] (analysis of Schedule 4, cl 50 and cl 51(3))
Plain English: The Court explains why the amended NSW Aboriginal Land Rights Act provisions (ss 42 and 42E) apply to the present land dealing, even though the dealing occurred before the amendments commenced, because the transitional definitions pull the new rules into operation where the old requirements were not met.
[17] (text of ss 42 and 42E and s 42G(1) and (5))
Plain English: The New South Wales Aboriginal Land Rights Act now requires certain approvals for land dealings by Local Aboriginal Land Councils, but a lease shorter than three years does not require NSW ALC approval.
[21]-[22] "I am satisfied that the requisite notices have been given... As at that date no native title claimant has sought to appear..."
Plain English: The Court confirms the required public and statutory notifications were made, and nobody claiming native title came forward during the time allowed.
[24] "He is 77 years of age... he is not aware of any hunting, fishing... or the exercise of native title rights..."
Plain English: The primary factual evidence was the long familiarity of Mr Cruse with the land and his statement that he has never seen native title activities occurring there.
[26] "I am therefore satisfied that the application is unopposed within the definition in s 86G(2)..."
Plain English: Because the other parties told the Court they did not oppose the application and no claimant appeared, the Court treated the application as unopposed under the Native Title Act.
This decision is directly relevant where:
Practitioners should look for these facts when advising LALCs and counterparties contemplating land dealings where non-claimant determinations of non-existence of native title may be prudent.
This judgment itself records and follows earlier Federal Court authorities that permitted similar non-claimant determinations (Peter Hillig, Deniliquin, Kennedy) and refers to earlier determinations by Jacobson J in nearby land (Cruse and Eden LALC v Minister for Lands) ([9], [25], [29]). The judgment does not record any later treatment or subsequent appellate consideration of this decision. To assess how later courts have treated Eden LALC v NTSCORP Ltd, independent post-2010 case-law research is necessary; no such later treatments are recorded in the reasons provided.
The judgment leaves a number of practical and legal questions open, either because they were not contested or because they lay beyond the narrow procedural decision:
Strength of factual basis for non-existence: The Court proceeded on the affidavit of an elder with long acquaintance with the land and the absence of any claimant response ([24]). The judgment does not explore the standard or sufficiency of evidence required in a contested context to establish non-existence of native title; that issue remains for cases where contestation occurs.
Effect of delay and potential changes in private parties' intentions: The Court noted unexplained delay and that Telstra might not proceed ([7]), but the judgment does not explore how prolonged delay or change of private counterparty affects the appropriateness of making a non-existence declaration, a practical question for future litigants.
Transitional application nuances: Jacobson J concluded the substituted ss 42 and 42E apply by reason of Schedule 4 cl 50/51 ([10]-[14]). Further disputes could arise about the precise operation of those definitions in more complicated transition scenarios, especially where partial compliance with former procedures occurred.
Scope of 'unopposed' pathway: The judgment confirms that an application unopposed within s 86G(2) can be determined, but does not engage with borderline situations where interested persons might have notice but do not appear for reasons of access, representation or awareness. The procedural safeguards and the Court's responsibilities in such scenarios may require further judicial elaboration.
Interaction with cultural significance enquiries: The LALC's internal resolution that the land was not of cultural significance ([6]) was part of the factual matrix. The judgment does not set out the Court's approach if there were contested evidence on cultural significance, or how s 42G's requirement to consider cultural and heritage significance would be enforced in the approval process.
Practitioners should treat this decision as authoritative on the narrow points it addresses, unopposed non-claimant applications, notice compliance, and the transitional operation of the NSW amendments, but mindful that contested or more factually complicated cases raise open questions for future judicial development.
The Applicant's Interest in the Land 19 I do not need to set out the provisions of s 61 and related provisions, namely ss 225 and 253 of the Native Title Act. The effect of those sections was explained by Bennett J in Peter Hillig at [4], [5] and [6]. 20 I am satisfied that Eden LALC is the registered proprietor of the Land and that it has a non-native title interest in relation to the Land. A copy of the title search for the Land is in evidence. It was annexed to Mr Cruse's affidavit.
Notice of the Application 21 Section 66(3) of the Native Title Act requires the Native Title Registrar to give notice of the details of a non-claimant application to certain persons or bodies and to notify the public. I am satisfied that the requisite notices have been given. 22 The period specified in the notice under s 66 expired on 29 March 2010. As at that date no native title claimant has sought to appear before the Court or notified an interest. The matter was called this morning in Court, and there was no appearance. 23 The National Native Title Tribunal has conducted a search of the registers and has confirmed there is no determination of native title over the Land within the meaning of section 13(3) of the Native Title Act. The results of the search are in evidence.
No Determination of Native Title in the Land 24 Paragraph 8 of the affidavit of Mr Cruse is relevant. He is 77 years of age and has been acquainted with the Land for most of his life; he is not aware of any hunting, fishing, or food gathering, or the exercise of native title rights by indigenous people on the Land. 25 I have made two previous native title determinations in relation to land which is nearby to the Land. Those matters were the subject of two judgments which I delivered; see Cruse v New South Wales Native Title Services Ltd [2006] FCA 1124 and Eden Local Aboriginal Land Council v Minister for Lands [2008] FCA 1934.
Unopposed Application 26 The respondents to the application are the Minister for Lands (pursuant to s 84(4) of the Native Title Act), and NTSCORP Limited. The solicitors for each of those parties have notified the Court in writing that the application is unopposed, and the respondents have signed the proposed short minutes of order. 27 I am therefore satisfied that the application is unopposed within the definition in s 86G(2) of the Native Title Act.
Federal Court Jurisdiction 28 I am also satisfied that the Federal Court has power to make the orders that are sought and that the Court has jurisdiction under s 81 of the Native Title Act to hear and determine the application.
Orders 29 Orders of the kind that are sought today have previously been made by the Court in Peter Hillig and also in Deniliquin Local Aboriginal Land Council [2001] FCA 609 and Kennedy v Queensland (2002) 190 ALR 707. 30 For these reasons, I propose to make orders in terms of the proposed short minutes of consent order signed by NTSCORP Limited and on behalf of the Minister for Lands, as well as on behalf of Eden LALC. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.
Eden Local Aboriginal Land Council
NTSCORP Limited
Restrictions on Use of the Land 8 The Land is subject to the restrictions contained in the provisions of ss 40 and 40AA of the Aboriginal Land Rights Act 1983 (NSW) ("Aboriginal Land Rights Act"). Those provisions were repealed and replaced with new provisions which came into effect on 31 March 2010. The relevant provisions are now contained in ss 42 and 42E of the Aboriginal Land Rights Act. 9 The effect of the now repealed provisions, ss 40 and 40AA, was explained by Bennett J in Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2005] FCA 1713 ("Peter Hillig") at [3]. 10 It seems to me that the effect of Schedule 4 Part 9 cl 51 of the Aboriginal Land Rights Act as in effect from March this year, is that the present application is governed by the provisions of ss 42 and 42E of the Aboriginal Land Rights Act rather than the repealed provisions of ss 40 and 40AA, even though the present application was made before the new provisions came into force. 11 In my opinion, this follows from the definitions of "existing land dealing" and "existing registrable instrument" contained in cl 50 of Part 9 of Schedule 4 of the Aboriginal Land Rights Act. It follows from those definitions that cl 51(1) and (2) of Part 9 of Schedule 4 do not apply. 12 Clause 51(3) of Part 9 of Schedule 4 provides as follows: If the requirements of the former land dealing provisions were not complied with in relation to a land dealing entered into before the commencement of the new land dealing provisions, the new land dealing provisions apply to that land dealing. 13 The definitions of "former land dealing provisions" and "new land dealing provisions" are contained in cl 50(1) of Part 9 of Schedule 4. Relevantly, "new land dealing provisions" means Division 4 of Part 2 of the Aboriginal Land Rights Act as substituted by the amending Act which, as I have said, came into force on 31 March 2010. 14 Sections 42 and 42E are contained in Division 4 of Part 2 and they, therefore, apply to the present application. 15 My attention has been drawn in written submissions provided by the Eden LALC to Item 8 of Part B of the New South Wales Aboriginal Land Council application form for Approval of Dealings. That form makes it clear that a determination under s 61 of the Native Title Act is a prerequisite for the NSW Aboriginal Land Council ("NSW ALC") to deal with the matter. 16 The provisions of ss 42(1), 42E(1), (2) and (3), as well as s 42G(1), are relevant. 17 Those subsections are as follows: 42(1) An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act). 42E(1) A Local Aboriginal Land Council must not deal with land vested in it except in accordance with an approval of the New South Wales Aboriginal Land Council under section 42G. 42E(2) However, the approval of the New South Wales Aboriginal Land Council is not required for the following land dealings by a Local Aboriginal Land Council: (a) a lease for a period of less than 3 years (including any option to renew the lease), other than a social housing management lease, (b) a land dealing prescribed by the regulations for the purposes of this section. 42E(3) A Local Aboriginal Land Council must not deal with land vested in it that is land transferred to the Council under section 36 unless both the Crown Lands Minister referred to in that section and the Minister have been notified of the proposed dealing. 42G(1) The New South Wales Aboriginal Land Council must (subject to subsection (2) and any requirements of the regulations), on an application for approval of a land dealing being made by a Local Aboriginal Land Council in accordance with this Act, approve (with or without conditions) the land dealing if the New South Wales Aboriginal Land Council is satisfied that: (a) the application is in accordance with this Act, and (b) the members of the Local Aboriginal Land Council have passed a resolution in accordance with subsection (5) and that the dealing is in accordance with that resolution. 42G(5) A Local Aboriginal Land Council resolution approving a land dealing must: (a) be passed at a meeting of which prior notice was given, in accordance with the regulations, and at which a quorum was present, and (b) be passed by not less than 80 per cent of the voting members of the Council present at the meeting, and (c) contain the following matters: (i) the identity of the land, (ii) a statement that the impact of the land dealing on the cultural and heritage significance of the land to Aborigines has been considered in determining whether to approve the dealing, (iii) the manner in which the land is to be dealt with, (iv) any conditions to which the approval of the dealing is subject. 18 I have been informed that, in anticipation of the Court's approval of the present application, the Eden LALC is currently preparing an application for approval from NSW ALC in accordance with s 42G of the Aboriginal Land Rights Act for the proposed land dealing with Telstra.
(2002) 190 ALR 707
Order made that native title does not exist in relation to the land comprised in New South Wales Department of Lands Certificate of Title folio identifier 98 of Deposited Plan 1036338 (see Orders and Reasons at [30]).