Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales

2. RELEVANT PROVISIONS OF THE NTA 11 Under s 13(1)(a) of the NTA, an application may be made to the Court for an approved determination of native title in relation to an area for which there is no other approved determination of native title. Section 13(3) relevantly provides that an approved determination of native title is "(a) a determination of native title made on an application under paragraph (1)(a) …" (see also the definitions of "approved determination of native title" and "native title" respectively in ss 253 and 223 of the NTA). 12 By virtue of s 94A of the NTA, a Federal Court order making a determination of native title must set out details of the matters mentioned in s 225 which defines "determination of native title" as follows: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 13 However, as the Land Council submits (at applicant's submissions (AS) [22]), if a native title determination application is made for an order that native title does not exist, it is unnecessary for the Court order to address the matters in ss 225(a) to (e) as those paragraphs are not engaged: CG v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [57] (North, Mansfield, Jagot and Mortimer JJ). 14 Under s 61(1) of the NTA, "[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", may make an "[a]pplication, 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." 15 After an application is made under s 61 of the NTA, under ss 66(2)-(3), the Registrar must, as soon as reasonably practicable, give the application to the State Minister and relevant representative bodies and also notify the public and various other people. Under s 66(10)(c) of the NTA, the notice must, amongst other things, state that a person who wants to be a party to the application must notify the Court in writing within 3 months starting on the notification day or, after that period, obtain the leave of the Court to become a party. 16 Under s 86G of the NTA, the Court is empowered to make a native title determination without holding a hearing. Section 86G(1) of the NTA provides: 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). 17 An application is unopposed for present purposes relevantly "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": NTA s 86G(2). As earlier mentioned, both of the respondents have given notice in these terms. 18 It follows, as Griffiths J held in Darkinjung Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1136 at [22] that: There are two "jurisdictional preconditions" to a Court making an order under s 86G(1) of the NTA: (1) the application is "unopposed"; and (2) the order sought (or made) is "within the power of the Court": Kennedy v State of Queensland [2002] FCA 747; 190 ALR 707 (Kennedy) at [21] per Sackville JA. If those jurisdictional preconditions to s 86G(1) are satisfied, then the Court "may" - that is, has a discretion to - make such an order without a hearing "if it appears appropriate to do so": Kennedy at [28]-[30]; see also Gandangara Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 646 at [8]-[9] per Griffiths J. 19 Where these preconditions are met, before making a determination that native title does not exist, the Court must first be satisfied on the balance of probabilities that native title does not exist in relation to the Land including relevantly because it has been extinguished by one or more prior acts of the Crown. The onus of proving that no native title exists lies upon the non-claimant applicant: Mace at [54], [64], and [115] (the Court). Furthermore, notwithstanding the functions of a local Aboriginal land council, the reasons why non-claimant applications are made more frequently in NSW and Queensland, and the fact that the application may be unopposed, the Court's approach as to whether the burden of proof on a non-claimant application has been discharged is the same as that taken in relation to any other application, namely: "has the applicant discharged its burden of proof that no native title exists in the claim area?": Mace at [44]; see also at [12] and [42]. In this regard, the Full Court in Mace relevantly explained that a clearly established approach emerged from the authorities: 47 The overriding proposition, emphasised by the Full Court in Worimi at [58], is that each case must be assessed on its own particular facts. 48 The Court's assessment will depend on those particular facts, on the nature of the land and the tenure involved, on the presence or absence of any present or previous native title claims and the nature and content of those claims, and on any particular evidence adduced on behalf of an applicant, and on behalf of any respondents. 49 In some cases, and at one end of the evidentiary scale, as the Full Court in Worimi observed at [58] and [59], there may be no need to go beyond proof of an extinguishing grant of freehold title. 20 Secondly, irrespective of whether applications are contested or unopposed, the Full Court in Mace held that the Court has a "wide discretion" whether or not to make a determination of no native title which cannot be "turned into any kind of checklist" but must turn on the particular circumstances of each case. In the exercise of that discretion, the Full Court explained that: 73 … the Court is able to consider as a factor in the exercise of its power whether it is "appropriate" to make a determination that no native title exists, even if a non-claimant applicant has proven on the balance of probabilities that no native title exists. The cases might be rare indeed where, if the burden of proof is discharged, a Court would consider it inappropriate to make a negative determination. However, in principle it may be no different to the Court's discretion to withhold relief in proceedings brought in other parts of its jurisdiction where an applicant has otherwise made out a case for relief. The circumstances which arise in the consideration of a determination to be made under the NT Act are broad, and new circumstances may yet arise, so that the Court should not foreclose consideration of such a factor. The "appropriateness" consideration governs and is a condition of the exercise of power in s 86G, and we see no reason why it is not at least a permissible factor to consider in a contested application. 21 Finally, and relevantly to the exercise of the discretion, the Full Court in Mace emphasised the need for caution before making a determination that no native title exists: 66 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; see also s 140(2) of the Evidence Act. The appropriate level of caution to be applied, in a determination that native title exists, or does not exist, was described by the majority of the Full Court in Badimia at [48]: The fact that a determination of native title binds the world and does not operate only between the parties applies to both positive and negative determinations. This fact 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. But the onus remains the civil standard of the balance of probabilities. If the circumstances are such that a native title claimant application has not been established to the requisite standard, the onus of proof to support a negative determination may or may not have been discharged. If not discharged, it necessarily follows that a negative determination may not be made. If discharged, however, it does not necessarily follow that a negative determination should be made. The propriety or otherwise of making of a negative determination in such a case will depend on a wide range of circumstances. As noted, the legal character of a determination, that it will bind the world at large and not just the parties, will necessarily inform the appropriate exercise of the discretion whether or not to make a negative determination.

3.1 Jurisdiction 22 The Court has jurisdiction to hear and determine this application under s 81 of the NTA. The Land Council, as the holder of an estate in fee simple over the land, has standing to bring the application under s 61(1) of the NTA because it is the holder of a non-native title interest in relation to the whole of the area in respect of which the determination is sought: see eg Deerubbin Local Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067. 23 Furthermore, the operation and effect of the provisions of the ALR Act to which I earlier referred make it clear that the issue sought to be raised by this application is not a moot one and must be determined by this Court: see also by analogy eg Lightning Ridge at [25] (Perram J). 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 NTA mean 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).

3.2 Prescribed conditions for making a determination that no native title exists 24 As the Land Council explained in its submissions and as adopted by the State at [9] of its submissions, the evidence establishes the following matters as a result of which I am satisfied that the prescribed preconditions to considering whether to make the orders sought by the non-claimant applicant are met: 7. No approved determination of native title has been made for the Land and there are no other native title determination applications over the Land: Seneviratne Affidavit [7]-[8] SS5, SS6. 8. The Applicant is the registered proprietor of the Land and holds the fee simple in the Land: Seneviratne Affidavit [6], SS4. The Applicant therefore holds a non-native title interest in relation to the whole of the Land for the purposes of subsection (2) relating to native title determination applications in the table at s 61(1) of the NTA. 9. On 24 January 2020, under s 63 of the NTA, the Native Title Registrar (Registrar) received a copy of the Application from the Federal Court. Under s 66(2) and (2A) of the NTA the Registrar gave a copy of the Application to the NSW government (State) and to the representative body under the NTA for NSW, [NTSCORP]: Seneviratne Affidavit [3], SS1. 10. Under s 66 of the NTA, the notification period for the Application was from 11 March 2020 to 10 June 2020: Seneviratne Affidavit [4], SS2. 11. The NNTT publicly notified the Application in the Area News and the Koori Mail on 26 February 2020: Seneviratne Affidavit [5], SS3. 12. On 8 April 2020, [NTSCORP] filed a notice of intention to become a party under s 84(3)(b) of the NTA (Notice of Intention). The basis for NTSCORP's Application was that NTSCORP was funded for the purpose of performing the obligations of a representative body in NSW and the ACT, and that the Land fell within the area over which NTSCORP performed those functions. 13. Upon the filing of the Notice of Intention, NTSCORP became a party to the proceedings: Section 84(3) of the NTA; Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563 at [24]-[25] per Rangiah J. 14. No native title claimant applications were filed during or subsequent to the notification period, nor were any notices of intention to become a party filed during the notification period, other than by NTSCORP: Seneviratne Affidavit [7]-[9], SS5, SS6.

3.3 Relevant provisions of the NTA dealing with extinguishment by a previous exclusive possession act 25 Section 11 of the NTA provides that native title is not able to be extinguished contrary to the Act. The NTA does not deal exhaustively with the circumstances in which an act may extinguish native title (Brown v Western Australia [2012] FCAFC 154; (2012) 208 FCR 505 at [24] (Mansfield J), citing Brown v Western Australia (No 2) [2010] FCA 498; (2010) 268 ALR 149 at [58]-[62] (Bennett J)). Relevantly, however, an act other than a public work which falls within the definition of a previous exclusive possession act (PEPA) and is attributable to the State extinguishes native title with effect from the time at which the act was done: see s 20(1), Native Title (New South Wales) Act 1994 (NSW) (NTA (NSW)) read with ss 23C and 23E of the NTA. In this regard, subject to a contrary indication, s 5(1) of the NTA (NSW) provides that words and expressions used in the NTA (NSW) "have the same meanings in this Act as they have in the Commonwealth Native Title Act." 26 An act is a PEPA as defined in s 23B(2) of the NTA where: (1) the act is valid; (2) the act took place on or before 23 December 1996 (being the date on which the decision in Wik Peoples v Queensland (1996) 187 CLR 1 was delivered); and (3) the act consists of the grant or vesting of an interest or estate set out in s 23B(2)(c) including relevantly the grant of a Scheduled interest as defined in s 249C of the NTA and the grant of a freehold estate. 27 The term "extinguishment in relation to native title" is defined in s 237A of the NTA to mean "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."

3.4 Has any native title been extinguished in Lot 18 by reason of the grant of a previous non-exclusive possession act? 28 The Land Council and the State correctly contend that any native title over Lot 18 was extinguished by the grant of an estate in fee simple to James Henry Douglas in 1885 and that this grant constitutes a PEPA as defined in s 23B(2) of the NTA. 29 Lot 18 was previously known as portion 18 in the County of Cooper, Parish of Brobenah and its title diagram is Crown Plan 709.1804 (Department of Industry Status Report dated 8 April 2019 reproduced at Attachment F1 to the Application (the Status Report) at Appendix 02). Lot 18 fell within the area deemed a Gold Field called the Bourke, Cooper, Dowling, and Gipps Gold Field pursuant to the Mining Act 1874 (NSW). This was done by way of proclamation in the NSW Government Gazette on 15 October 1880 (Appendix 41, Status Report, and Seneviratne Affidavit at [10] and annexure SS7). 30 On 18 January 1884, by way of publication in the NSW Government Gazette, portion 18 in the County of Cooper, Parish of Brobenah was permitted for purchase under s 2 of the Lands Acts Amendment Act 1875 (NSW) (Status Report, Appendix 39). Subject to provisos not presently relevant, s 2 of the Lands Acts Amendment Act 1875 (NSW) provided that: Upon application by the holder of any lease or promise of lease of Crown lands containing improvements made previously to the expiration of the term therein mentioned for the sale of any Crown land other than land within a proclaimed gold field or upon application by the improver or his assigns in authorized occupation made at any period for the sale of improved Crown lands in proclaimed gold fields the Governor in Council may sell and grant such lands respectively to the owners of such improvements without competition in fee simple … (emphasis added). 31 On 9 March 1885, Lot 18 was granted to James Henry Douglas of "Narandera" [sic] (Status Report, Appendix 38). This grant constitutes a PEPA under s 23B(2) of the NTA because: (1) the grant was valid; (2) the grant took place on or before 23 December 1996; and (3) the grant consisted of the grant or vesting of a freehold estate in accordance with s 23B(2)(c)(ii) of the NTA. 32 It follows that the grant of portion 18 to James Henry Douglas on 9 March 1885 wholly extinguished native title over Lot 18 under s 20(1)(a) of the NTA (NSW), as read with s 23E of the NTA.

3.5 Has any native title been extinguished in Lots 264 and 280 by reason of the grant of a previous non-exclusive possession act? 33 The Land Council and the State also correctly contend that any native title in Lots 264 and 280 was extinguished by the grant of Special Lease 1926-3 Narrandera (SL 1926-3). As a result, it is not necessary (as the Land Council and the State contend) to consider whether the earlier grant of Settlement Lease 588 to Henry Coles Evans on 24 June 1898 constitutes a PEPA. 34 The phrase "Scheduled interest" is defined in s 249C of the NTA to mean: (a) anything set out in Schedule 1 [to the NTA], other than a mining lease or anything whose grant or vesting is covered by subsection 23B(9), (9A), (9B), (9C) or (10) (which provide that certain acts are not previous exclusive possession acts); or (b) an interest, in relation to land or waters, of a type declared by a regulation for the purposes of this paragraph to be a Scheduled interest. 35 Part 1 of Schedule 1 to the NTA lists those acts in NSW which are Scheduled interests. Relevantly, cl 3(8) of Part 1 of Sch 1 lists a special lease under s 75 of the Crown Lands Consolidation Act 1913 (NSW) (CLC Act) "that permits the lessee to use the land or waters covered by the lease solely or primarily for…: … agriculture (or any similar purpose) and grazing combined" as a Scheduled interest. 36 The State's submissions conveniently explain the facts pertaining to the grant of SL 1926-3 as follows, which I gratefully adopt: 39. Special Leases 1926-3, 4 and 7 Narrandera were granted by the Minister for Lands over Portion 264, a quarry reserve and parts of Portion 18 in the County of Cooper, Parish of Brobenah [Appendix 18, Status Report]. For present purposes, Special Lease 1926-3 covered Lots 264 and 280. 40. Documents known as 'tenure cards' regarding Special Leases 1926-3, 4 and 7 Narrandera are set out at Appendices 17, 19 and 20 of [the Status Report], which were the NSW Government's record system for special leases and other tenures under the Crown Land[s] Consolidation Act 1913 (NSW). Relevantly, the tenure card at Appendix 20 [to the Status Report] confirms that Special Lease 1926-3 in the land district of Narrandera applied to portion 18, 264 and the Quarry Reserve in the County of Cooper, Parish of Brobenah; 41. As noted by the Applicant at AS[41], "Lot 264 was previously known as Portion 264 in the Parish of Brobenah, County of Cooper and its title diagram is Crown Plan 557.1804: [Status Report,] Appendix 03 and Appendix 06". 42. With respect to Lot 280: (a) This lot was previously marked on Crown plans and parish maps as a quarry reserve, known as Quarry Reserve 60,838 [Status Report, Appendices 6, 7 and 16]; (b) The lot is a small parcel of land to the west of, and adjacent to, Lot 264, and to the north of Lot 18 [Status Report, Appendix 1]; (c) The title diagram for Lot 280 is Deposited Plan 726688 [Status Report, Appendices 4 and 7]; and d. Crown plans and parish maps mark the land that is now Lot 280 as having been subject to Special Lease 1926-3 [Status Report, Appendices 6 and 7]; 43. The term of Special Lease 1926-3 was subsequently extended to 31 December 1947 by notification in the NSW Government Gazette on 8 September 1939 [NSW Submissions, Attachment A]. In that notice, Special Lease 1926-3 was stated to relate to portions 18 and 264 and "Quarry Reserve 60,838" in the County of Cooper, Parish of Brobenah. 44. As such, Special Lease 1926-3 applied to Lots 264 and 280. 37 I note that, as submitted by the State in footnote 17 to its submissions, the tenure card at Appendix 20 to the Status Report includes the date on which the lease was gazetted as originally being 16 November 1928. This was struck out and the date of 8 September 1939 was substituted, being the date on which the extension of SL 1926-3 was notified in the NSW Government Gazette as reproduced at Attachment A to the State's submissions. 38 Importantly, SL 1926-3 was granted for a term for the purpose of "grazing and agriculture". In this regard, I accept the State's submission (with which the Land Council agrees) that, despite the provision not being identified in the notice published in the NSW Government Gazette in Appendix 18 to the Status Report, SL 1926-3 was granted pursuant to s 75 of the CLC Act. 39 Specifically, the only provision which enabled the grant of special leases when SL 1926-3 was granted was s 75 of the CLC Act. Section 75 of the CLC Act conferred on the Minister the power to grant leases over areas "not exceeding 320 acres" of Crown land not in the Western Division. It was not in issue that the Land was not in the Western Division. Special leases could be granted for a range of purposes specified in s 75 or for "any other purpose declared by the Minister by notification in the Gazette to be a purpose within this section". Neither "grazing" nor "agriculture", being the purposes identified in the Special Lease, were included in the list of purposes set out in s 75 itself. However, both "grazing" and "agriculture" had been notified as purposes within the meaning of s 90 of the Crown Lands Act 1884 (NSW) and were taken to be purposes for s 75 of the CLC Act by virtue of s 3(f) of the CLC Act: see the NSW Government Gazette No 568, 28 August 1894, folio 5391 and the NSW Government Gazette No 791, 26 November 1895, folio 7675 (NSW Submissions, Attachments B and C respectively). 40 The purpose of "grazing and agriculture" is not listed under cl 3(8) of Part 1 of Sch 1 to the NTA. However the purpose of "agriculture (or any similar purpose) and grazing combined" is listed in cl 3(8). 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. For example, Olney J observed in Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32 at [81] that "it does no violence to the general policy of the Schedule if, to the extent that the Schedule specifies a general purpose, such as for example "oval", a lease for the purpose of say "football oval" is treated as being encompassed by the purpose specified". Similarly, his Honour held that the purposes of a lease granted for "golf course and for the recreation and amusement of members of the Alice Springs Golf Club Inc only" were embraced within the scheduled purposes of "golf course" and "golf club" and the lease was therefore a Scheduled interest: at [112(iii)]. As a further example, in Lightning Ridge, Perram J held that a lease granted under s 28A of the Western Lands Act 1901 (NSW) for "Business Purposes (Reptile Park)" fell within the purpose of "tourist accommodation and facilities" in cl 3(6) of Part 1 of Sch 1 to the NTA, finding that: 30 … Clause 3(6) of Schedule 1 refers to 'Special' leases under s 28A of the WLA which are solely or primarily for a business purpose of a number of specified kinds. One of these purposes is 'tourist accommodation and facilities'. I do not think that what is required thereby is a business involving both tourist accommodation and tourist facilities so that a lease for tourist accommodation which did not include facilities would not be included. Instead, this is one of those cases where 'and' really means 'and/or': cf. Re Peat Resources of Australia Pty Ltd; ex parte Pollock (2004) 181 FLR 454 at 460-467 [23]-[54]; [2004] WASCA 122 at [23]-[54] per Malcolm CJ. 31 It will suffice, therefore, if a reptile park is a 'tourist facility' within the meaning of cl 3(6). In my opinion, it is. Not everyone who visits a reptile park is a tourist but tourists are more heavily represented amongst the class of those who do visit such parks than the general population. 32 Correspondingly, whilst there is no doubt that a reptile park is a facility for holding reptiles, it is also a facility for entertaining the public and a public with a distinct flavour of tourism … 41 Adopting the approach illustrated by these cases, I agree that the specified purpose of "grazing and agriculture" in SL 1926-3 is embraced by the purpose of "agriculture (or any similar purpose) and grazing combined" listed in cl 3(8) of Part 1 of Sch 1 to the NTA. It follows that, as SL 1926-3 was a Scheduled interest for the purposes of s 23B(2)(c)(i) of the NTA, any native title is extinguished over Lots 264 and 280: see s 20(1) of the NTA (NSW) read with ss 23C and 23E of the NTA.

3.6 Discretion 42 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 for the reasons I have earlier explained.

4. CONCLUSION 43 For these reasons, I consider that it is appropriate to make an order under s 86G that the unopposed non-claimant application be determined on the papers without a hearing pursuant to s 86G of the NTA. I am also satisfied that the Land Council 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 forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.