Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW

REASONS FOR JUDGMENT 1 The applicant is a Local Aboriginal Land Council constituted pursuant to s 50 of the Aboriginal Land Rights Act 1983 (NSW) ("the Act"). It is the council for the area of Gandangara which takes in a good portion of the Greater Sydney area including parts of Bankstown, Sutherland and Liverpool. Under the Act a Local Aboriginal Land Council (a "Council") may claim "claimable" Crown land and when that application is successful such land may be conveyed to the Council in fee simple. 2 Early this century, the applicant applied for the transfer to it of a parcel of unoccupied Crown land in Lucas Heights, which is in the south west of Sydney. The land was 9.13 ha in area and consisted of unoccupied scrub. On 15 June 2009, nearly a decade later, that application finally resulted in the issue to it of a Certificate of Title over Lot 200 in Deposited Plan 1136781. 3 By s 36(9) of the Act, however, the transfer to the applicant of the estate in fee simple was "subject to any native title rights and interests existing in relation to the lands immediately before the transfer." This matters because s 42 of the Act prohibits a Council from dealing with land vested in it which is subject to such rights unless there has been an "approved determination of native title" under the Native Title Act 1993 (Cth). As a matter of theory it is, of course, possible that s 42 does not operate in any particular case by reason of there being no antecedent native title rights and interests. The reality, in terms of conveyancing, is somewhat different as it is unlikely that any purchaser would acquire the land unless the native title position had first been clarified. 4 Section 13(1) of the Native Title Act permits an application to be made to this Court for a determination of native title in relation to an area for which there is no "approved determination of native title". Evidence was placed before me that there was no such determination in respect of the land the subject of this application ("Lot 200"). Section 61 of the Native Title Act permits an application under s 13 to be made by a variety of persons including, relevantly, a person holding a non-native title interest in the land (such as an estate in fee simple). In this case the applicant holds such an estate and hence is qualified as an applicant. On 11 January 2010 an application was filed by the applicant for a determination that Lot 200 was not subject to native title. The making of such a determination will have the effect of permitting the applicant to deal with the land since it will lift the prohibition in s 42 of the Act. 5 By s 66(3) of the Native Title Act the Native Title Registrar, through the National Native Title Tribunal was required to give notice of the application to various nominated parties and also to the public. On 26 February 2010 this Court received a letter from the Tribunal which indicated that it had notified the persons specified in s 66(3) as well as the public. The notification date was 10 March 2010 and the notification period ended on 9 June 2010. At the end of that period there were no claims lodged with the Tribunal or this Court. 6 The two respondents to the proceeding, the Minister for Lands and NTSCORP Limited, have both now indicated that they do not oppose this application, by filing notifications to that effect under s 86G(2) of the Native Title Act. It should be recorded that Ms Koroglu, a solicitor employed by the second respondent, contacted the registry to inform the Court that in filing that notice, the second respondent nonetheless did not consent to the application. 7 The evidence before me consists of the affidavit of Mr Johnson sworn 15 June 2010. This evidence establishes: that the applicant is duly constituted; that it complies with the Act; that Lot 200 was obtained under that Act; and that a non-claimant application has been made. 8 Unfortunately this evidence does not tell me anything about Lot 200. The evidence establishes, and I find, that there are no other parties who wish to make a claim in relation to the land but it does not necessarily follow that there are no native title interests in the land. Claims of the present kind 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: cf Nambucca Heads Local Aboriginal Land Council v Minister for Lands [2009] FCA 624 at [3]-[4]; Eden Local Aboriginal Land Council v NTSCORP Ltd [2010] FCA 745 at [24]. 9 Ordinarily an application such as the present one should be accompanied by some evidence about the indigenous community's understanding of the status of the land. This may come through the Council itself or through an elder. The court should not generally be left, as it was in this case, in an evidentiary vacuum. 10 The present application is unopposed and the Court may proceed without a hearing under s 86G of the Native Title Act. The question which arises is whether there is native title. There is no evidence before me that there is native title and, given the notification procedure, I infer that there are no persons who believe there is native title. Not without some hesitation I conclude that there are no native title interests in Lot 200. If there were, the Court would have been informed of them. 11 I determine that no native title exists in relation to the land subject to the application. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.