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

1. Native title does not exist in relation to Lot 1 of Section 7 in DP758476 in the Parish of Jondaryan, County of Cooper in the State of New South Wales.
2. Each party bear their own costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

GRIFFITHS J: 1 The applicant seeks a determination under s 61(1) of the Native Title Act 1993 (Cth) (NT Act) that native title does not exist in relation to the land which comprises Lot 1 of Section 7 in DP 758476 in the Parish of Jondaryan, County of Cooper in the State of New South Wales (the Land). 2 The determination that is sought relates to the applicant's restrictions in dealing with the land as a result of ss 36(9) and 42 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). The effect of s 36(9) is that the applicant's fee simple title to the Land is subject to any native title rights and interests that existed in relation to it immediately prior to its transfer to the applicant. The effect of s 42 of the ALR Act is that the applicant, as an Aboriginal Land Council in New South Wales, may not deal with land subject to native title rights and interests unless that land is subject to an approved determination of native title. Section 40(1)(g) of the ALR Act defines "deal with land" to include a development application in relation to land. 3 For the reasons given below, a determination will be made substantially as sought by the applicant. Summary of background matters 4 The applicant was transferred an estate in fee simple in the Land from the State of New South Wales under s 36 of the ALR Act on 23 September 2015. The transfer was registered on the Real Property Act Register on 30 May 2016. 5 The Land is the site of the former police station located on the corner of Olympic, Ulong and Banna Streets in the City of Griffith, New South Wales (Police Station). The Land has an approximate area of 0.17 ha. 6 The applicant intends to make a development application for the Land to be used as a community centre. Some procedural matters 7 The notification period for the non-claimant application filed on 21 November 2016 was 25 January 2017 to 24 April 2017. Public notice was given in the Griffith Area News and the Koori Mail on 11 January 2017. During the notification period, no other parties filed a native title claimant application over the Land and no other parties were joined to the proceeding. 8 On 6 and 9 October 2017, respectively, the State Attorney-General and NTSCORP Limited (NTSCORP), being the State native title representative body, filed notices under s 86G of the NT Act that each party did not oppose orders in, or consistent with, the terms sought by the applicant. The Court made orders by consent on 1 November 2017 that the proceedings be determined unopposed in accordance with s 86G of the NT Act without holding a hearing. 9 The applicant relied on three affidavits. The first is by Mr Robert Carrol affirmed on 25 October 2017. The second is by Mr Daniel Isaac Welsh affirmed on 23 June 2017. The third is by Ms Roxane Read affirmed on 15 September 2017. 10 In his affidavit, Mr Carrol deposed that he is the Chief Executive Officer of the applicant. He annexed to his affidavit a title search of the Land dated 28 June 2016 performed by Mr Gavin Scott, who is a solicitor of the firm representing the applicant. The results show that the applicant was the registered title owner of the Land as at the date of the search. Also annexed to the affidavit is a copy of an overlap analysis report dated 10 October 2016 produced by the National Native Title Tribunal. The report was made after a search was conducted of the National Native Title Registers maintained by the National Title Registrar and confirms that, as at 10 October 2016, there were no registered native title determinations, applications or indigenous land use agreements in relation to the land. 11 Mr Welsh deposed in his affidavit that he is the solicitor representing the applicant. Among the other documents annexed to his affidavit was a copy of the public notice prepared by the National Native Tribunal which stated that the notification period for the non-claimant application would be 25 January 2017 to 24 April 2017, together with copies of the public notices in the Griffith Area News and the Koori Mail from 11 January 2017. 12 Also annexed was an updated title search of the Land dated 6 June 2017 which confirmed that the applicant was still the registered proprietor of the Land as at that time, a copy of the transfer request dated 30 May 2016 which records the transfer of the Land to the applicant by the State of New South Wales, and an updated overlap analysis report dated 9 June 2017 from the National Native Title Tribunal (NNTT Report), which confirmed that there were no other claims lodged over the area as at that time. Mr Welsh also annexed a "SIX Maps" image of the Land dated 21 June 2017 from Spatial Services, a division of the New South Wales Department of Finance, Services and Innovation, (Spatial Services) which he deposed shows the Police Station located on the Land. 13 Other documents annexed to Mr Welsh's affidavit included several historical documents relating to the Land, including Crown Plans, a copy of the "Notification of Dedication of Land for Public Purposes Under the Crown Lands Consolidation Act, 1913" contained in New South Wales Government Gazette No. 215 dated 30 November 1934 (1934 Gazette Notice) and aerial photographs of the Land taken on 8 December 1977 and 22 January 1988 produced by the New South Wales Department of Industry (together, the 1977 and 1988 aerial photographs). These documents are discussed in further detail at [20] below. 14 In his submissions, summarised at [22]ff below, the State Attorney-General initially raised several issues with the applicant's evidence. On 5 September 2017, the Court made orders for the applicant to file and serve by 15 September 2017 further evidence and submissions to respond to any issues raised in the respondents' submissions. The affidavit of Ms Read and further submissions were subsequently filed by the applicant. 15 In her affidavit, Ms Read deposed that she is a graduate employee of the solicitor for the applicant. Annexed to her affidavit were: A copy of a land record card from the Griffith Genealogical and Historical Society (land record card), which records the date of the gazette allocating the Land as for "Police Purposes (Police Station & Residence)" as 30 November 1934. An excerpt from "The Brothers in law" published in 2004 and compiled by Ms Colleen Norris (Norris Excerpt) that was sent to Ms Read by the Griffith City Library. The Norris Excerpt states under the heading "The Early Lock-ups" that "The new Police Station was described as having been completed in 1934 (the station was occupied 13.2.1934)…". The excerpt contains a diagram titled "Griffith Police Station - Additional Cell & Office Accommodation" which exhibits a floor plan of the Police Station, and a diagram titled "Sergeant's quarters" which exhibits a floor plan of the Sergeant's quarters on Ulong Street and is dated 1933. The Norris Excerpt also contains a document which the applicants submitted was a Crown Plan of the Land. An excerpt from "Griffith Heritage Study" by Mr Peter Kabaila, which contained a Griffith Heritage Inventory, being a report produced using State Heritage Inventory database software from the Heritage Office of New South Wales (Inventory Report). The Inventory Report states that the "station began functioning on 13 February 1934". An email dated 14 August 2017 from Spatial Services, which states that the earliest images that Spatial Services had over Griffith were taken on 2 December 1958. The aerial photo showing the Land is undated but according to Spatial Services records was taken on 2 December 1958. Further "SIX Maps" images of the Land from Spatial Services obtained on 11 September 2017, which Ms Read deposed show the Police Station on the Land. 16 Ms Read deposed that she was unable to obtain further evidence or documentation from Spatial Services, New South Wales Police Force, New South Wales State Archives, Griffith City Library, Griffith Genealogical and Historical Society and the Griffith City Council in relation to the construction and use of the structures on the Land. Key statutory provisions 17 It is desirable to set out some of the key relevant statutory provisions of the NT Act: 23B Previous exclusive possession act (1) This section defines previous exclusive possession act. Grant of freehold estates or certain leases etc. on or before 23.12.1996 (2) An act is a previous exclusive possession act if: (a) it is valid (including because of Division 2 or 2A of Part 2); and Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2. (b) it took place on or before 23 December 1996; and (c) it consists of the grant or vesting of any of the following: … (ii) a freehold estate; … … Construction of public works commencing on or before 23.12.1996 (7) An act is a previous exclusive possession act if: (a) it is valid (including because of Division 2 or 2A); and (b) it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996. … 23C Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth 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. Public works (2) If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth: (a) the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and (b) the extinguishment is taken to have happened when the construction or establishment of the public work began. Other extinguishment provisions do not apply (3) If this section applies to the act, sections 15 and 22B do not apply to the act. … 24FA Consequences if section 24FA protection applies (1) If an area is subject to section 24FA protection (see sections 24FB, 24FC and 24FD) at a particular time: (a) any future act by any person in relation to the area that is done at that time is valid; and (b) if such an act extinguishes native title to any extent - the native title holders are entitled to compensation, in accordance with Division 5, for the act in so far as it has that effect; and (c) if the act mentioned in paragraph (a) does not so extinguish native title and the native title holders would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection - they are entitled, in accordance with Division 5, to compensation for the act. Who pays compensation (2) The native title holders may recover the compensation from: (a) if the act is attributable to the Commonwealth - the Crown in right of the Commonwealth; or (b) if the act is attributable to a State or Territory - the Crown in right of the State or Territory. … 24FC When section 24FA protection arises - non‑government applications An area is subject to section 24FA protection at a particular time if: (a) before that time, a non‑claimant application, or a corresponding application for an approved determination of native title under a law of a State or Territory, has been made; and (b) the application is not covered by paragraph 24FB(a); and (c) the area is the whole or a part of the area covered by the application; and (d) the period specified in the notice given under section 66, or under a corresponding provision of the law of the State or Territory, has ended; and (e) either: (i) at the end of that period, there is no relevant native title claim (see section 24FE) covering the area; or (ii) after the end of that period, but before the particular time, all entries that relate to a relevant native title claim that covered the area are removed from the Register of Native Title Claims or cease to cover the area; and (f) the application, in so far as it relates to that area, has not been withdrawn, dismissed or otherwise finalised; and (g) there is no entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that native title exists in relation to the area. … 251D Land or waters on which a public work is constructed, established or situated In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. … 253 Other definitions … public work means: (a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities: (i) a building, or other structure (including a memorial), that is a fixture; or (ii) a road, railway or bridge; or (iia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2 - a stock-route; or (iii) a well, or bore, for obtaining water; or (iv) any major earthworks; or (b) a building that is constructed with the authority of the Crown, other than on a lease. Note: In addition, section 251D deals with land or waters relating to public works. … 18 It is apposite to note that where a "previous exclusive possession act" is not attributable to the Commonwealth, but rather is attributable to New South Wales, as is the case here, s 23E of the NT Act is applicable. Section 23E allows a State or Territory to make laws to the same effect as s 23C of the NT Act. Relevantly, s 20(2) of the Native Title (New South Wales) Act 1994 (NSW) provides for the extinguishment of native title by a "previous exclusive possession act", as defined in s 23B(7) of the NT Act. The applicant's submissions summarised Application of s 24FA of the NT Act 19 The applicant submitted that the formal requirements of s 24FC were satisfied and that therefore it was afforded the protection of s 24FA of the NT Act. The applicant otherwise submitted that the orders sought are within the powers of the Court, citing Mudgee Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 668 (Mudgee) at [8]. Extinguishment of native title 20 The applicant further submitted that native title had been extinguished over the Land due to a valid previous exclusive possession act under s 23B(7) of the NT Act. This act consisted of the construction or establishment of a public work before 23 December 1996, being the former Police Station. The applicant cited the following evidence as supporting its submission, which were annexed to the affidavit of Mr Welsh: Crown Plan 17672-1603 of the Town of Griffith dated 4 April 1929, which records the Land as "P…Station" (1929 Crown Plan) and Crown Plan 153-2848 of the Town of Griffith dated 29 June 1934 (1934 Crown Plan), which records the Land as "Police Station". The 1934 Gazette Notice, who shows that the Land was dedicated for a public purpose, being police purposes. The 1977 and 1988 aerial photographs, which the applicant submitted indicate the constructed structure of the Police Station on the Land before 23 December 1996. Position regarding further evidence 21 The applicant initially submitted that the matter did not require further evidence to be adduced going to the cessation of native title rights and interests over the Land. State Attorney-General's submissions summarised Minister's role and obligation 22 The key aspects of the State Attorney-General's submissions dated 24 July 2017 are set out below. 23 The State Attorney-General submitted that it adopts the same position as the State Minister, who ordinarily neither consents to nor opposes applications of this kind, citing Mudgee at [11]. He submitted that the Court "needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely" citing Munn for and on behalf of the Gungarri People v State of Queensland [2001] FCA 1229; 115 FCR 109 at [29] per Emmett J. Proof that no native title exists 24 The State Attorney-General was satisfied that: The 1934 Crown Plan, which the State Attorney-General submitted clearly shows the Land as "[d]edicated for Police Purposes", clearly labels the Land as a "Police Station". The 1934 Gazette Notice applied to the Land. The relevant notice produced by the National Native Title Tribunal complied with the applicable content requirements set out in s 66(10). The applicant is a person who can make the application sought in these proceedings, as it is a person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought (see s 61 of the NT Act). 25 The State Attorney-General submitted, however, that the 1977 and 1988 aerial photographs and the 1929 Crown Plan were somewhat difficult to confirm on visual inspection. Proof that no native title exists 26 The State Attorney-General submitted that where an applicant is seeking to apply for a native title determination in accordance with ss 13(1) and 61(1) of the NT Act, the applicant bears the burden of proof to satisfy the Court that no native title exists on the land (citing Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929; 181 FCR 300 (Worimi No 2) at [25]). The applicable standard of proof is the balance of probabilities (at [26]). 27 The State Attorney-General submitted that the Court clearly had the power to make the determination the subject of the application, citing CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466. 28 The State Attorney-General stated it is open to the Court to find that native title does not exist in relation to the Land. He referred to the absence of opposition or any evidence of continued existence or otherwise of native title. He also cited previous authority where the Court has allowed unopposed non-claimant applications to be successfully made under s 86G of the NT Act in a relatively summary fashion without a detailed consideration of the evidence (including Metropolitan Local Aboriginal Land Council [2001] FCA 605; Deniliquin Local Aboriginal Land Council [2001] FCA 609; Darkinjung Local Aboriginal Land Council [2001] FCA 1124 and Weber v State of Queensland [2015] FCA 996). He submitted that whether such orders should be made depend on the Court's view of all the evidence adduced in support of the application. 29 Despite the submissions set out in [27] and [28] above, the State Attorney-General stated that the Court appeared to have insufficient evidence before it to properly assess the applicant's claims concerning extinguishment. He compared the evidence in the present application to the evidence in Banjima People v Western Australia (No 2) [2013] FCA 868 (Banjima). 30 The State Attorney-General stated that the evidence here - being the 1929 and 1934 Crown Plans, the 1934 Gazette, and the 1977 and 1988 aerial photographs - fell short of the evidence adduced in Banjima. In particular, the State Attorney-General submitted that: (a) The applicant had not adduced evidence or made any argument in relation to when the former police station was constructed, and the pictures do not address the question of when the structures were constructed (citing s 23C of the NT Act). (b) The Crown Plans did not indicate evidence of where the Police Station was to be constructed on the Land, or that the structure on the land was a police station. (c) The applicant's submissions did not address the recent SIX Maps aerial photographs. (d) It was unclear which category of "past act" the construction of the Police Station would be under the NT Act 1993 (Cth), and how to apply s 251D of the NT Act to the structure on the Land, which he said had not been proved to be a police station in any event. (e) A "broad brush" approach to the issue of proving the existence of a public work was taken on the basis of aerial photographs that are unclear. He concluded by stating that the Court should exercise caution in making any determination of extinguishment. 31 At the time of the State Attorney-General filing its submissions on 24 July 2017, the State Minister had not decided to file a notice under s 86G of the NT Act citing concerns with the applicant's case at that time. NTSCORP's submissions summarised 32 In its submissions, NTSCORP adopted the submissions of the State Attorney-General regarding there being insufficient evidence before the Court to enable the Court properly to assess the applicant's claims concerning extinguishment. It also submitted that because "an act in land 'subject to section 24FA protection' extinguishes native title", it was not logical for the Court to determine a non-claimant application. This was because the procedures under Subdivision F of the NT Act are not directed to the substantive question of the existence of native title (citing Reeves J in Badimia at [88], [102]-[103], [105] and [110]). Further, according to NTSCORP there were "procedural and other potential difficulties" associated with the Court determining a non-claimant application, including because the procedures under Subdivision F were not directed to the substantive question of whether or not native title exists. This was said to be reiterated by the fact that s 24FA(1)(b) anticipates the possibility of a future substantive determination. It concluded its written submissions in stating that the nature of non-claimant applications does not deny the necessity nor the power of the Court to determine non-claimant applications for the purposes of the ALR Act. Applicant's further submissions summarised 33 As noted above, on 15 September 2017, the applicant filed the affidavit of Ms Read and submissions in response to the issues raised in the respondents' submissions. 34 The applicant confirmed that it relied on evidence that native title had been extinguished as the basis for demonstrating that native title does not exist in relation to the Land. It submitted that any native title rights and interests over the Land had been extinguished due to the construction or establishment of a public work before 23 December 1996, being the former Griffith Police Station. 35 In response to the State Attorney-General's concern that the applicant had not identified which category of "past act" the construction of the former Police Station would be under the NT Act, the applicant submitted that the construction was a category A past act, given the construction occurred before 1 January 1994 and still presently exists (citing s 229(4)(b) of the NT Act). It submitted the Police Station was constructed on the land on or before 13 February 1934 and the buildings still presently exist. This was supported by such evidence as the Norris Excerpt and the Inventory Report, which state that the Police Station was completed in, and began functioning in, 1934, respectively, as described at [15] above. The applicant stated that while the Inventory Report did not specifically identify the location of the Police Station, as located on the Land, it states "Address: Banna Avenue" and records the same construction date as the Norris Excerpt. Accordingly the Court can draw an inference that the Police Station referred to in the Inventory Report is located on the Land, so submitted the applicant. 36 The applicant further accepted that the evidence had not been provided by the New South Wales Government, and that both the Norris Excerpt and Inventory Report are privately created non-fiction historical works from the Griffith City Library. It said that no other documentation could be obtained from the New South Wales Government, New South Wales Police Force, New South Wales State Archives, Griffith City Library, Griffith Genealogical and Historical Society or the Griffith City Council. The applicant stated that the Inventory had been produced using State Heritage Inventory database software provided by the Heritage Office of New South Wales. 37 In response to the State Attorney-General's submissions that the applicant had not proved the structure on the application area to be a police station, the applicant pointed to the 1934 Gazette Notice, which stated the Land was for police purposes. The applicant submitted that the Norris Excerpt refers to the Griffith Police Station as a functioning and operating police station that was "occupied 13.2.1934", which is indicative of a functioning police station, and describes the usage of some of the structures of the former Police Station by police officers for police purposes. Such structures include: the Banna Avenue end of the main building, which was originally the "Lock-up Keeper's Residence"; the central portion of the Police Station building which "consisted of a vestibule, the Officer in Charge's Office, Detective's Office, locker-room, Traffic Office, meal/muster room, Sergeant's Office, Charge Room, store rooms, cells and exercise yard"; the house on the corner of Ulong and Olympic Streets that had "formerly been the home of the Officer in Charge and later, the Lock-up Keeper's residence" and was "taken over for more office space due to the continual increase of Griffith's population which required more policemen to maintain 'Law and Order'". 38 Also included in the Norris Excerpt were two floor plans titled "Griffith Police Station - Additional Cell & Office Accommodation" which records several rooms that were indicative of a police station including "Sergeant", "Inspector & Clerk", "Detectives" and "Traffic". The second floor plan is titled "Sergeants Quarters". These were indicative of a functioning police station from 13 February 1934, so submitted the applicant. 39 In response to the State Attorney-General's submissions that the 1977 and 1988 aerial photographs were "somewhat difficult to confirm on visual inspection", the applicant relied on a further aerial photograph from the New South Wales Department Spatial Services taken on 2 December 1958 (1958 aerial photograph). The applicant included a side by side comparison of the 1958 aerial photograph and a "SIX MAP" photograph obtained on 11 September 2017 (2017 aerial photograph). By reference to the two images, the applicant submitted that the structures on the Land in the 1958 aerial photograph are substantially the same as those portrayed on the 2017 aerial photograph. 40 In response to the concerns raised by the State Attorney-General as to the application of s 251D of the NT Act on the evidence provided, the applicant submitted that native title had been extinguished to the entirety of the Land by the construction of a public work. The applicant referred to the 1934 Gazette which dedicates the entire allotment of the Land to be a site for police purposes, and the structures on the Land occupy almost all of the Land within the outer bounds of the lot, as indicated by SIX Map images obtained on 21 September 2017 and annexed to Ms Read's affidavit. The applicant said this is further supported by the two floor plans contained in the Norris Excerpt, described at [38] above. 41 The applicant noted NTSCORP's submissions, and in response submitted the Court has the power to make the orders sought by the application. It submitted that the Court should make a determination that native title does not exist in relation to the Land, as s 42 of the ALR Act requires an approved determination of native title before the applicant can deal with the Land. Disposition of the application 42 An approved determination of native title has the meaning given by ss 13(3), (4) and (7) of the NT Act (see s 253 of the NT Act). Section 13 of the NT Act relevantly provides: (1) An application may be made to the Federal Court under Part 3: (a) for a determination of native title in relation to an area for which there is no approved determination of native title; … (3) Subject to subsection (4), each of the following is an approved determination of native title: (a) a determination of native title made on an application under paragraph (1)(a) … 43 A determination of native title, as defined by s 225 of the NT Act, is "a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters …". 44 The NNTT Report shows that there is no approved determination in relation to the Land, as at 9 June 2017. The Court is satisfied that the application meets the requirements of s 13(1) of the NT Act. 45 Item 1 in s 61(1) of the NT Act provides that "a person who holds a non-native title interest in relation to the whole of the area to which the determination is sought" may make an application "… as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title". Such an application, according to s 253 of the NT Act, is a "non-claimant application" by virtue of it not being a "claimant application". 46 As the registered proprietor of the Land, the Court finds that the applicant has standing to make an application under s 61(1) of the NT Act. Proof of non-claimant applications 47 There are two bases upon which the Court may be satisfied that native title does not exist in relation to land the subject of a non-claimant application: (a) native title does not presently exist because it is not claimed by or cannot be proved by a native title claimant (eg Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 per Perram J); (b) native title has been extinguished by prior acts of the Crown (eg Gandangara Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 646 per Griffiths J; Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 per Perram J at [44]). 48 The Court is satisfied that both these bases have been established here and that it is appropriate to make an order that native title does not exist in relation to the Land. 49 As to the first method, the current application is now unopposed and the Court is entitled to proceed to determine it without a hearing under s 86G of the NT Act. There is no evidence that there is native title in the Land and, given the notification procedure which is described above, it may be inferred that there are no persons who believe that there is native title in the Land. 50 I am also satisfied that, when viewed as a whole, the evidence which has been submitted by the applicant is sufficient to establish on the balance of probabilities that native title in the Land was extinguished due to the construction or establishment of a public work on the Land before 23 December 1996, being the former Griffith Police Station. The relevant evidence is summarised in [20] and [37]-[40] above. That evidence need not be repeated. It adequately responds to the concerns initially raised by both the Attorney-General and NTSCORP. It is somewhat ironic that the applicant has found itself in a position where it needed to obtain additional evidence relating to the construction and history of the Police Station on the Land in circumstances where bodies such as the New South Wales Police Force and the New South Wales State Archives were unable to provide relevant evidence. There is further irony in the fact that the State's first law officer effectively put the applicant to proof on matters relating to the construction and history of a police station. 51 It is apposite to repeat some comments made in Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067, which also concerned a non-claimant application that native title did not exist in relation to particular land: 51 If a respondent to a non-claimant application establishes that native title may well exist (by adducing for example evidence from "traditional owners" about the boundaries of traditional lands, areas of significance to that group, perhaps supported by archaeological or anthropological evidence), then the non-claimant applicant may be required to refute that evidence (perhaps by demonstrating extinguishment in relation to that area) (Worimi No 2 at [52] and [55] and affirmed on appeal Worimi (aka Worimi Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 at [58]). Importantly, the Full Court emphasised that each case has to be addressed according to its own particular facts. … 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. Conclusion 52 The respondents do not oppose orders in or consistent with the terms sought by the applicant, based on the applicant's further submissions and the affidavit of Ms Read. Having regard to all the matters above, the Court is satisfied that the orders sought are within its powers (Mudgee at [8]). The relevant requirements of the NT Act have been met and an order will be made as sought by the applicant. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.