Metropolitan Local Aboriginal Land Council #3 v Attorney-General of New South Wales

The parties requested that the application be determined on the papers.

Section 86G(1) of the NTA provides as follows.

The Attorney-General and NTSCORP do not oppose the orders sought by the Land Council in respect of four of the parcels comprising the subject land (the uncontroversial parcels). The Land Council’s application is “unopposed” as defined by s 86G(2), and the condition in s 86G(1)(a) is therefore satisfied, to that extent. However, in the course of exchanging submissions, different views emerged between the parties as to the potential existence of native title in the three remaining parcels (the controversial parcels) and as to the proper basis upon which a decision might be reached. The complexity of the issues that arise in relation to these parcels led me to seek further assistance from the parties by way of an oral hearing, and this aspect of the application has therefore not been dealt with under s 86G.

By requiring the period specified in a notice “given” under s 66 to have ended, s 86G(1) requires the notification process set out in s 66 to have been followed as a prerequisite to the making of a decision without a hearing. That notification process is clearly important in circumstances where the Court is asked to make an order that determines the existence of rights in land and thus operates against persons other than the parties to the proceeding (cf CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; 240 FCR 466 at [61] (North, Mansfield, Jagot and Mortimer JJ) (Badimia)). Where no party appears to oppose an application for a determination of native title, it is important for the Court to be satisfied that the statutory process for bringing the application to the attention of persons who might have an interest in the subject matter has been completed.

Section 66, so far as is presently relevant, provides as follows.

Evidence before the Court establishes that the Native Title Registrar (the Registrar) was given a copy of the application on 13 May 2024 (cf s 66(1)) and, by 16 May 2024, had given copies of the application and its accompanying documents to the State Minister (ie, the Attorney-General) (cf s 66(2)) and to NTSCORP (which receives funding under s 203FE for the purpose of performing the functions of a “representative body” (cf s 66(2A)), and therefore has the functions and powers of such a body pursuant to s 203FEA). Correspondence from the National Native Title Tribunal (NTTT) dated 26 June 2024 provides evidence that the Registrar had given notice containing details of the application to the persons and entities listed in s 66(3)(a) and was about to give public notice of the application in the Sydney Morning Herald and the Koori Mail. Copies of the notice, apparently published in those publications on 3 July 2024, are before the Court. This form of publication was consistent with cl 6 of the Native Title (Notices) Determination 2011 (No 1) (Cth)), which was in force at the time of publication, and thus constituted notification of the public “in the determined way”, for the purposes of s 66(3)(d).

The notices given under s 66(3) must specify a “notification day” (s 66(8)), which must be a day by which, in the Registrar’s opinion, it is reasonable to assume that the notices will have come to the attention of the persons who must be notified under s 66(3)(a) and (d) (s 66(9)). The notices issued in the present case specified 17 July 2024 as the notification day. Section 66(9) does not appear to have been the subject of detailed consideration by the Court, and I infer that the Court has been prepared to impute the relevant opinion to the Registrar when the date selected is one that appears reasonably capable of supporting that opinion. In the present case, there is no direct evidence of the Registrar having held the opinion referred to in s 66(9) in relation to the notification day. However, the selection of 17 July 2024 by the Registrar (who can be taken to be aware of the role played by the notices and the terms of s 66(9)) is in itself a strong indication that the Registrar regarded it as reasonable to assume that the notice would by that date have come to the attention of the persons required to be notified. The actual time provided (two weeks from the publication of the notice to the general public) makes the holding of such an opinion reasonable and supports the inference that the Registrar held that opinion.

Section 66(10) requires a notice to include statements “to the effect” of the three propositions set out in paras (a) to (c). Having considered the text of the notice I am satisfied that this requirement was met.

The period specified in the notice, as required by s 66(10)(a) and (c), was the period of three months starting on the notification day (17 July 2024). Thus, subject to the proposed orders being “within the power of the Court” the power to make orders under s 86G(1) if it is considered appropriate is available.

As noted earlier, there is no existing determination of native title in respect of the subject land (a point confirmed by the NNTT). Accordingly, the Land Council is entitled to apply for a determination under s 61 of the NTA. The order sought by the Land Council (the proposed order), as is required by s 94A of the NTA, sets out details of the matters mentioned in s 225 (noting that the matters referred to in s 225(a) to (e)—in effect, specifying the nature and extent of native title rights and who holds them—do not arise in the case of a determination that no native title exists: Badimia at [57]). The “formal” requirements for a determination under s 86G are therefore satisfied.

In Moller v State of Queensland [2023] FCA 347 at [10]-[11] (Moller) and Coonamble Local Aboriginal Land Council v Attorney General of New South Wales [2023] FCA 938 at [11] (Coonamble) I regarded proof on the balance of probabilities that the proposed order reflects the true position as to the existence of native title (ie, here, that no native title exists) as an aspect of whether the proposed order is “within the power of the Court” for the purposes of s 86G(1). This understanding seems to be supported by Deerubbin Local Aboriginal Land Councl v Attorney General of New South Wales [2020] FCA 1506 at [31] (Griffiths J) (Deerubbin), although the conclusion at [48] of that case is equivocal. However, the (technically obiter) discussion by the Full Court in Mace v State of Queensland [2019] FCAFC 233; 274 FCR 41 at [72]-[73] (Mace) seems to indicate that issues as to whether the relevant onus of proof has been satisfied go to the question of appropriateness rather than the Court’s power. The Land Council’s submissions in the present case appear to proceed on that understanding. I have come to the view that this is probably the preferable way to understand s 86G(1), although this point does not affect the disposition of the present application (and it does not affect the correctness of Moller or Coonamble). I will therefore deal with the substantive issues under the next heading.

The main issue to be considered under this heading is whether it is established that no native title rights exist in the relevant parcels.

The Full Court observed in Mace at [42]-[44] that a non-claimant applicant must establish “the same kinds of matters” whether the application is decided under s 86G(1) or is contested: the absence of a contradictor in the context of s 86G is a forensic difference, not a legal one. These statements are obiter (in that the applications in Mace were not dealt with under s 86G), but are carefully considered dicta by a Full Court and have been treated by single judges as establishing that “[t]he question for the Court remains the same whether the application is unopposed, or contested: has the applicant discharged its burden of proof that no native title exists in the claim area?” (Deerubbin at [14(b)] (Griffiths J); see also Murphy v State of Queensland [2021] FCA 81 at [26]-[27] (Collier J)).

I therefore proceed on the basis that, despite the absence of any party adducing evidence or making submissions in support of the existence of native title, the Land Council must establish that native title does not exist. That must be shown according to the usual civil standard of proof (Deerubbin at [14(c)]). Appropriate inferences may be drawn from the absence of any opposition (especially from the relevant representative body) where notice of the application has been given, but the strength of such inferences depends on the circumstances of the case (Deerubbin at [14(i)]; Mace at [94]).

The Land Council initially put its case for a negative determination on the basis that any native title previously existing in relation to the subject land has been extinguished by one or more previous exclusive possession acts (PEPAs), within the meaning of s 23B of the NTA, attributable to the State of New South Wales. In the face of issues raised by the other parties concerning three parcels (which are dealt with later in these reasons), the Land Council also submitted that the Court should find that native title has not been claimed and cannot be proved by any claimant. It is not necessary to consider this submission in relation to the uncontroversial parcels.

Most of the parcels comprising the subject land have been the subject of several dealings during the course of their tenure history. However, in order to establish that native title has been wholly extinguished in relation to each of those parcels, it is only necessary for the Land Council to point to one dealing having that effect. The Land Council’s submissions therefore focused on a single event in connection with each parcel of land and my reasons will do the same.

A PEPA attributable to the Commonwealth extinguishes native title by force of s 23C of the NTA, while s 23E provides that (subject to certain conditions) a law of a State may make provision to the same effect as s 23C in respect of PEPAs attributable to that State. (An act is “attributable to” a polity if it is done by the Crown in right of that polity, by its legislature or by a person acting under a law of the polity: NTA s 239.) Section 20 of the Native Title (New South Wales) Act 1994 (NSW) (the NT (NSW) Act) confirms the extinguishing effect of PEPAs attributable to the State. The relevant acts in the present case are all attributable to the State of New South Wales.

Section 23B of the NTA provides as follows.

For the purposes of the uncontroversial parcels it is necessary only to consider s 23B(2). The exceptions in subsections (9), (9A), (9B), (9C) and (10) do not apply here.

Further, all of the acts considered in this part of these reasons occurred before the enactment of the Racial Discrimination Act 1975 (Cth) (the RDA) and there is therefore no doubt that they were “valid”, in the sense of not being rendered inoperative under s 109 of the Constitution to the extent that they purported to affect native title. As explained below, that is the preferable understanding of what “valid” in s 23B(2)(a) means. Of course, it is also necessary to consider whether the acts amounted to valid exercises of power under New South Wales law. If they were not valid in that sense, it would follow that they did not affect native title irrespective of the NTA. An act that was ultra vires and ineffective would not amount to a “grant or vesting” of any kind of interest within the meaning of s 23B(2)(c).

Part 1 of Schedule 1 to the NTA lists interests granted under New South Wales legislation that are “Scheduled interests” for the purposes of s 23B(2)(c)(i). They include, relevantly to this case:

Lot 953 was previously designated as Portion 953 in the Parish of Manly Cove, County of Cumberland. It is shown as an area of land bordering Snake Creek and on the corner of two tracks, one of which connects with Forest Way and the other with Morgan Road in the suburb of Belrose. It appears from satellite images to be bushland.

Portion 953 was the subject of a special lease designated as Sp L 1952-177, granted to Ada Face on 29 June 1956 for the term 1 June 1956 to 31 December 1983. A notice in the NSW Government Gazette on 29 June 1956 (the June 1956 Gazette notice) recorded this special lease as one of a number granted under the 1913 Act and as granted for the purposes of “[r]esidence, orchard and poultry farm”. The notice also recorded that the lease was subject to provisions of the 1913 Act and to reg 106 of the regulations made under that Act (Regulations under the Crown Lands Consolidation Act, 1913 (NSW) (1913 Act Regulations)), the effect of which was to require land to be used “only for the purposes for which the lease is granted”.

Each of the purposes of “residence”, “orchard” and “poultry farm” is within cl 3(8) of Schedule 1 to the NTA and the special lease, subject to having been validly granted, was therefore a “Scheduled interest”. It does, however, need to be demonstrated that a special lease for one or more of these purposes was capable of being granted under the 1913 Act as it stood at the relevant time.

Sp L 1952-177 is also “valid” in the sense referred to in s 23B(2)(a) of the NTA. Having occurred before the commencement of the RDA, it could not have been rendered invalid by the existence of native title and therefore does not require validation under Division 2 or 2A of Part 2 of the NTA.

Sp L 1952-177 is therefore a PEPA which, pursuant to s 20 of the NT NSW Act, extinguished any native title rights that existed in the land that now comprises Lot 953. Such extinguishment, having occurred, is permanent.

Lot 2225 was previously designated as Portion 2225 in the Parish of Manly Cove, County of Cumberland. It is shown as an area of land bordering Crozier Road, Linden Avenue and Forest Way in the suburb of Belrose. It appears from satellite images to be bushland.

Portion 2225 was the subject of a special lease designated as Sp L 1954-15, granted to John Henry Taylor on 29 March 1957 for the term 1 March 1957 to 31 December 1984. A notice in the NSW Government Gazette on 29 March 1957 (the March 1957 Gazette notice) recorded this special lease as one of a number granted under the 1913 Act and as granted for the purposes of “[r]esidence, agriculture and poultry farm”. The notice also recorded that the lease was subject to provisions of the 1913 Act and to reg 106 of the 1913 Act Regulations), the effect of which was to require land to be used “only for the purposes for which the lease is granted”

Each of the purposes of “residence”, “agriculture” and “poultry farm” is within cl 3(8) of Schedule 1 to the NTA and the special lease, subject to having been validly granted, was therefore a “Scheduled interest”. It does, however, need to be demonstrated that a special lease for one or more of these purposes was capable of being granted under the 1913 Act as it stood at the relevant time.

Sp L 1954-15 is also “valid” in the sense referred to in s 23B(2)(a) of the NTA, having occurred before the commencement of the RDA.

Sp L 1954-15 is therefore a PEPA which, pursuant to s 20 of the NT NSW Act, extinguished any native title rights that existed in the land that now comprises Lot 2225. Such extinguishment, having occurred, is permanent.

Lot 1 and Lot 2600 are neighbouring blocks of land on Morgan Road in Belrose. They are separated by an unformed road. They also appear from satellite images to be bushland.

DP 1285945, registered on 12 July 2022, was for the subdivision of what was formerly Lot 2630 in DP 752038. It was by registration of this subdivision that Lot 1 came into being.

The former Lot 2630 in DP 752038, which included the current Lot 1, was previously Portion 2630 in the Parish of Manly Cove, County of Cumberland. That Portion was the subject of a special lease designated as Sp L 1958-97, granted to Thomas Wilfred on 31 July 1959 for the term 1 June 1959 to 31 December 1986. A notice in the NSW Government Gazette on 31 July 1959 (the July 1959 Gazette notice) recorded this special lease as one of a number granted under the 1913 Act and as granted for the purposes of “[r]esidence and poultry farm”. The notice also recorded that the lease was subject to the provisions of the 1913 Act and the regulations made under that Act, the effect of which (by reg 106 of the 1913 Act Regulations) was to require land to be used “only for the purposes for which the lease is granted”.

Each of the purposes of “residence” and “poultry farm” is within cl 3(8) of Schedule 1 to the NTA and Sp L 1958-87, subject to having been validly granted, was therefore a “Scheduled interest”.

As noted above in connection with Lot 953, “residence” had been proclaimed as a purpose under the 1884 Act; and it has been accepted that “poultry farm”, while not proclaimed in its own right, was a purpose for which a special lease could validly be granted.

Sp L 1958-87 is also “valid” in the sense referred to in s 23B(2)(a) of the NTA, having occurred before the commencement of the RDA.

Sp L 1958-87 is therefore a PEPA which, pursuant to s 20 of the NSW Act, extinguished any native title rights that existed in the land that now comprises Lot 1. Such extinguishment, having occurred, is permanent.

Lot 2600 was previously Portion 2600 in the Parish of Manly Cove, County of Cumberland. That Portion was the subject of Sp L 1954-284, granted to William Aspinall on 7 December 1956 for the term 1 October 1956 to 31 December 1983. A notice in the NSW Government Gazette on 7 December 1956 (the December 1956 Gazette notice) recorded this special lease as one of a number granted under the 1913 Act and as granted for the purposes of “residence and agriculture”. The notice also recorded that the lease was subject to the provisions of the 1913 Act and the regulations made under that Act, the effect of which (by reg 106 of the 1913 Act Regulations) was to require land to be used “only for the purposes for which the lease is granted”.

Each of the purposes of “residence” and “agriculture” is within cl 3(8) of Schedule 1 to the NTA and Sp L 1954-284, subject to having been validly granted, was therefore a “Scheduled interest”.

As noted above in relation to Lot 953, proclamations of purposes under the 1884 Act continued in effect as declarations of purposes under the 1913 Act. “Residence” had been proclaimed under the 1884 Act. So too had “agriculture” (on 26 November 1895). The material before the Court is thus sufficient to sustain a finding that Sp L 1954-284 was validly granted under the relevant State legislation and is therefore a “Scheduled interest”.

Sp L 1954-284 is also “valid” in the sense referred to in s 23B(2)(a) of the NTA, having occurred before the commencement of the RDA.

Sp L 1954-284 is therefore a PEPA which, pursuant to s 20 of the NSW Act, extinguished any native title rights that existed in the land that now comprises Lot 2600. Such extinguishment, having occurred, is permanent.

The Land Council has established on the balance of probabilities that any remaining native title rights in the uncontroversial parcels of land have been extinguished. There is no reason why it is not appropriate to make the orders sought in relation to these parcels

Lots 95, 96 and 97 in DP 869624 are situated in the suburb of Oxford Falls (although it appears they were formerly part of Frenchs Forest). Lot 95 is in between the residential properties on Corymbia Circuit and those on Spicer Road; Lot 96 is on the northern side of Corymbia Circuit; and Lot 97 has frontage to both Corymbia Circuit and Wearden Road. All appear from satellite images to be bushland.

DP 869624, registered on 28 July 1997, was a subdivision of the area previously covered by DP 856470 (registered on 13 February 1996). DP 856470 comprised seven large lots numbered 100 to 106.

The Land Council submits that any native title that subsisted in these parcels was extinguished by a compulsory acquisition that occurred under New South Wales legislation in 1996. The Attorney-General agrees with this submission but NTSCORP resists it. The Land Council submits in the alternative that a finding can be made to the effect that native title has not been claimed and cannot be proved. The Attorney-General agrees with this submission. NTSCORP does not actively oppose it but urges caution in making such a finding.

Lots 100 to 106 in DP 856470 were compulsorily acquired by the NSW Land and Housing Corporation (the NSWLHC) under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Acquisition Act), for the purposes of the Housing Act 1912 (NSW), the Housing Act 1976 (NSW) (the 1976 Housing Act) and the Housing Act 1985 (NSW), by a notice dated 9 April 1996 and published in the NSW Government Gazette on 19 April 1996 (the acquisition notice). Lots 95, 96 and 97 are part of the land compulsorily acquired by that action. The NSWLHC was then registered as the proprietor of the lots under the Real Property Act 1900 (NSW) (the Real Property Act) on 17 June 1996. The Land Council relies on the effect of the acquisition notice (the compulsory acquisition), and if necessary the registration as well, to contend that any native title interests in these parcels have been extinguished. The Attorney-General, as noted earlier, supports this position.

It is convenient to consider the issues that arise in the following order:

Section 11(1) of the 1976 Housing Act, as in force at the relevant time, conferred power on the NSWLHC to acquire land by agreement or by compulsory process in accordance with the Acquisition Act. Section 19 of the Acquisition Act provided for an authority authorised to acquire land by compulsory process (after undertaking certain pre-acquisition procedures set out in Division 1 of Part 2) to declare, with the approval of the Governor and by notice published in the Government Gazette, that any land described in the notice was compulsorily acquired. The effect of such a notice was set out in s 20 of the Acquisition Act, as follows.

Native title rights come within the broad expression “all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land”, unless that expression is construed restrictively as referring only to rights created under statute or pursuant to the royal prerogative. No reason is apparent why the expression should be construed restrictively. “Interest” was defined broadly in s 4, to include a “right, … power or privilege over, or in connection with, the land”. In any event the issue is clarified by s 7A, which provided as follows.

It is obviously impossible for a State authority (or anybody else) to “acquire” native title rights pursuant to statute or the common law, in the sense of taking the benefit of those rights by way of a transfer. However, in the context of the Acquisition Act (and in particular s 20(1)(b)), the words “authorised to acquire” in s 7A should be taken to mean that the authority is authorised to acquire land, by way of a notice, freed from the burden of any subsisting native title rights.

The acquisition notice identified the land being acquired in the following way.

It will be noted that some specific rights were expressed not to be acquired. Native title rights were not mentioned in this connection, but come within the general words “all that piece or parcel of Crown Land”. The compulsory acquisition, if effective, was thus clearly inconsistent with the continuation of any native title rights in the controversial parcels. The result (subject to issues of validity) is that any such rights subsisting immediately before the issue of the notice were extinguished (cf, eg, Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [204] (Gleeson CJ, Gaudron, Gummow and Hayne JJ) (Ward); Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609; 109 FCR 178 at [23] (Lehane J)).

NTSCORP has raised an issue concerning the requirement for notice to be given before land is acquired pursuant to the Acquisition Act. Section 11(1) provided, at the relevant time:

However, this was qualified by s 12(1), which (relevantly) provided as follows.

“Owner” was defined in s 4 as a person who had an “interest in the land”. Because of the broad definition of “interest”, referred to above, the native title holders (if any) would come within the concept of “owners”. “Registered interest” was defined in s 4 (as amended by the NT (NSW) Act) so as to include interests recorded in the National Native Title Register.

However, there is no evidence as to whether there were any registered native title interests (s 12(1)(a)), whether any native title holders were in “lawful occupation” of the subject land as at 1996 (s 12(1)(b)) or whether they were known to the relevant authority (ie, NSWLHC) to have an interest in the land (s 12(1)(c)). Proof of some invalidating feature is required before the Court will proceed on the basis that an administrative act which appears valid on its face was invalid, including in cases of collateral attack: Ousley v The Queen (1997) 192 CLR 69 at 130-131 (Gummow J); Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [151] (Hayne J); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [41] (Bell, Gageler and Keane JJ). Absent any evidence that there were native title holders at all, let alone that they were in occupation of the land or known to NSWLHC, the absence of evidence that notice was given to such persons is therefore not fatal to the validity of the compulsory acquisition. The same is true of holders of any other kinds of interest in the land.

The Land Council and the Attorney-General also relied on s 33 of the Acquisition Act, which provided as follows.

On its face s 33(a) appears to be an express legislative answer to what has been termed “the Project Blue Sky question” (eg Miller v Minister for Immigration and Multicultural Affairs [2024] HCA 13; 278 CLR 628 at [29], [30]), namely whether there is to be discerned a legislative purpose to invalidate a purported exercise of power that fails to comply with the notification requirements in the Acquisition Act. In Baptist Union of NSW v Georges River Council [2017] NSWSC 347 at [66] (Baptist Union), which was relied on by the Attorney-General, Lonergan J accepted a submission that it was not a purpose of the legislation that an act done in breach of s 12 amounted to jurisdictional error. However, the issue in Baptist Union was the validity of a proposed acquisition notice (PAN) rather than an actual acquisition and her Honour does not appear to have relied on s 33 in reaching her conclusion at [66].

Section 33 did receive some attention in Roads and Maritime Services (NSW) v Desane Properties Pty Ltd [2018] NSWCA 196; 98 NSWLR 820 at [211]-[216] (Bathurst CJ, Ward and Payne JJA) (Desane). That was also a case in which a property owner had challenged the sufficiency of a PAN before the acquisition process was complete and sought declaratory and injunctive relief. Section 33 did not prevent a proposed acquisition from being challenged before it had taken place, as the Court confirmed at [216]. The section seems to have been relied on by the property owner to support a submission that, by inference, any irregularity in a PAN would invalidate the exercise of power prior to acquisition (see at [211]). The Court rejected that argument but appeared to accept that “a notice which is ‘void, invalid and of no effect’ is no notice at all and would not engage the operation of s 33” (at [211], [214]) and that “if an authority of the State chose not to give a notice at all, … s 33 has no saving operation” (at [215]).

These statements are strictly obiter and, with respect, difficult to interpret (and to reconcile with the terms of s 33). Section 33 is not in any sense “engaged” by a PAN. Their Honours’ reference to a “notice which is void, invalid and of no effect” may therefore have been intended as a reference to an acquisition notice purportedly issued under s 19 of the Acquisition Act. However, the phrase “void, invalid and of no effect” (which occurs in quotation marks throughout the Court’s reasons) seems to be drawn from the property owner’s pleading, where invalidity was asserted in relation to the PAN. The absence of a “valid” PAN, or any PAN at all, appears to be exactly the kind of circumstance to which s 33 is directed; and the invalidity of an acquisition notice is exactly the outcome that s 33 appears intended to prevent.

It may be significant that the Court referred at [211] to Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146 (Futuris), which considered the effect of s 175 of the Income Tax Assessment Act 1936 (Cth). Section 175 provided that the validity of a tax assessment was not affected “by reason that any of the provisions of this Act have not been complied with”. Gummow, Hayne, Heydon and Crennan JJ held that the effect of s 175 was that “errors in the process of assessment do not go to jurisdiction and so do not attract the remedy of a constitutional writ” (at [24]), but that the section operated “only where there has been what answers the statutory description of an ‘assessment’” and that “conscious maladministration of the assessment process” might not produce an “assessment” to which s 175 applied (at [25]). The reference in Desane at [215] to an authority deciding to give no notice at all can be understood as suggesting merely that deliberate non-compliance would not be saved by s 33 (which would be consistent with what was said in Futuris). However, their Honours also emphasised at [211] and [214] that s 33 only applies to land acquired “by compulsory process under this Act”. The reference to a process “under this Act” reflects language that appeared in s 474 of the Migration Act 1958 (Cth) and was treated as effectively denying it operation as a privative clause in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

This last consideration leads me to conclude that the Court in Desane regarded s 33 as incapable of saving an acquisition notice from invalidity in a case where notice of the proposed acquisition was required to be given but was not (or where such notice was given but did not comply in some significant way with the requirements of the Acquisition Act). The relevant statements are obiter, but appear in the course of detailed and evidently considered reasoning by an intermediate appellate court. It would not be appropriate for a single judge to ignore them or dismiss them as wrong. Had I been persuaded that the compulsory acquisition in the present case involved non-compliance with s 11 (read with s 12) of the Acquisition Act, I would therefore hold that the acquisition was not effective under the law of New South Wales and therefore had no effect on native title.

Although NTSCORP made submissions about the effect of registration under the Real Property Act on native title, it did not submit that the registration of NSWLHC as the registered proprietor of the land in June 1996 was invalid in the sense of not being effective under that Act. The Torrens system of registered title, which the Real Property Act embodies, has been described in the authorities as a system of “title by registration” rather than one of “registration of title” (a distinction which becomes significant later in these reasons) and as one in which the registered proprietor acquires an indefeasible title even if the dealing pursuant to which registration was obtained was void: Breskvar v Wall (1971) 126 CLR 376 at 385-386 (Barwick CJ (Owen J agreeing); see also at 397 (Menzies J), 399-400 (Windeyer J)) (Breskvar v Wall); Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59; 220 CLR 472 at [52] (McHugh ACJ, Hayne and Heydon JJ). The consequence is that, even if it is correct that the compulsory acquisition was void because of a lack of notice, NSWLHC acquired a freehold interest in the controversial parcels upon registration in June 1996 (subject to the potential effect of the NTA).

Section 10 of the NTA, which has been in force since the enactment of the Act in 1993, provides that native title is recognised and protected “in accordance with this Act”. Section 11 provides that native title “is not able to be extinguished contrary to this Act”. This indicates that, so far as acts occurring after the enactment of the NTA are concerned, their validity in so far as they affect native title depends on the provisions of the NTA (and State or Territory legislation enacted in accordance with the NTA). Except on one issue mentioned below, the reasoning in Mabo v Queensland (1988) 166 CLR 186 (Mabo No 1) (which depended on the application of the RDA to discriminatory acts) can be put to one side.

Section 233(1) of the NTA defined “future act”, relevantly, as follows.

Section 235(5), which was part of the definition of “permissible future act”, provided as follows.

The Attorney-General submitted that the compulsory acquisition in the present case came within this provision and was thus a “permissible future act”. This appears to be common ground.

Section 23 provided as follows in relation to permissible future acts constituting compulsory acquisitions (subject to ss 24 and 25, which are not presently relevant).

Four points should be noted about the operation of s 23 in connection with the compulsory acquisition.

First, s 23(2) provided that the act “is valid”. The expression “valid” appears frequently in Part 2 of the NTA and its significance is not always obvious. “Valid” is defined (unhelpfully for present purposes) in s 253 to include “having full force and effect”. Provisions such as s 23(2), which provide that an act is “valid”, are expressed to confer validity and thus indicate that the word means that the act is legally effective to the extent that it affects native title (ie, not prohibited or denied effect by the NTA or the RDA). As noted earlier, an “act” that purports to confer or impair rights might be “invalid” (ie, legally ineffective) for reasons unconnected with the NTA; but such an act necessarily has no effect on native title and thus does not intersect with the NTA. Provisions of the NTA conferring “validity” would exceed Commonwealth power if they were construed as curing invalidity in the sense of non-compliance with State law. “Valid”, in relation to an act, should thus be taken to mean permitted to have effect by the NTA in so far as the act affects native title (either because of the prospective operation of provisions of the NTA or because it is retroactively “validated” by provisions of that Act).

Second, the validity conferred by s 23(2) was expressed to be subject to Subdivision B. Within that subdivision, s 26(1) and (2) provided (subject to presently irrelevant exceptions) as follows.

The compulsory acquisition in the present case was a compulsory acquisition of rights including native title rights (on the hypothesis that such rights subsisted) under a “Compulsory Acquisition Act” and a question therefore arises as to whether it came within Subdivision B by force of s 26(2)(d). I understand the position of the parties to be that it did not, because NSWLHC, despite having a separate legal personality, was “the State” for the purposes of the NTA. Reference was made in this connection to Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219 at 233. However, that case considered the concept of a “State” in a quite different context.

Here, the resolution of the question whether the compulsory acquisition came within s 26(2)(d) does not appear to require determination of the scope of “the State” where that expression is used in the NTA. For the purposes of s 26(2)(d), the relevant concept is “the Government party”; and this expression is defined by s 26(1) to mean the Commonwealth, State or Territory proposing to do the relevant act. The compulsory acquisition in the present case was effected by NSWLHC, exercising powers conferred on it by statute. If NSWLHC was not “the State”, it follows that there was no “Government party” proposing to do a relevant act and s 26 was not engaged. On the other hand, if NSWLHC was “the State” (and therefore was relevantly the “Government party”), the acquisition in the present case was only for its benefit and therefore did not come within the terms of s 26(2)(d). Either way, Subdivision B did not apply and the compulsory acquisition was therefore “valid” pursuant to s 23(2).

Third, like the legislation considered in Metropolitan Local Aboriginal Land Council v Attorney-General (NSW) [2025] FCA 1183 at [54] (McDonald J), the effect of an acquisition under the Acquisition Act was not to resume the Crown’s radical title. The effect was to confer an interest equivalent to freehold on a statutory authority (in this case NSWLHC). The compulsory acquisition would therefore extinguish native title at common law, and it comes within the description of an “acquisition … of the whole or part of any native title rights and interests” in s 23(3).

Fourth, on that basis, by operation of s 23(3)(a), “the non-extinguishment principle” applied. That principle was (and still is) defined by s 238. It has the effect that an act does not extinguish native title rights but those rights, to the extent their continued enjoyment is inconsistent with the act, have no effect in relation to the act. If the act or its effects are later wholly removed, the native title rights will again have effect. In Commonwealth v Yunupingu [2025] HCA 6; 99 ALJR 519 at [83], Gageler CJ, Gleeson, Jagot and Beech-Jones JJ made the following observation on the effect of the NTA’s application of the non-extinguishment principle.

To the extent that any native title rights in the controversial parcels existed as at 1996, the effect of the compulsory acquisition on such rights was limited by s 23(3)(a) so that it did not extinguish those rights; rather, it prevented any enjoyment of those rights for so long as the compulsory acquisition and its legal effect (ie, the freehold interest that was vested in the NSWLHC and any other interests derived from it) remained in existence. This outcome (which was not contested by the Land Council or the Attorney-General at the hearing) would not in itself be sufficient to support a determination that no native title exists in the controversial parcels.

The Land Council and the Attorney-General sought to overcome the application of the non-extinguishment principle by reliance on s 23(3)(b) of the NTA. They submitted that the registration of NSWLHC as registered proprietor on 16 June 1996 was a further act, creating an interest in the land that was inconsistent with the continued existence of any native title rights, which was allowed to have its full effect in relation to such rights by s 23(3)(b) and therefore validly extinguished them.

NTSCORP resisted this submission. It argued, in substance, that the registration of title was not a distinct “act” but a mere completion of the acquisition process; and that, alternatively, it was not an act giving effect to the “purpose of the acquisition”. NTSCORP also suggested that, if the registration was capable of being relevant, native title came within the exceptions to indefeasibility in s 42 of the Real Property Act and was therefore not extinguished by registration.

It is useful to deal with the express exceptions to indefeasibility at the outset. Section 42 of the Real Property Act, as in force in 1996, provided as follows.

It will be noted that s 42 conferred indefeasibility as against any other estate or interest “whether derived by grant from the Crown or otherwise”, which is capable in its terms of extending to native title interests recognised by the common law. The expressed exceptions to this principle were “fraud” and the interests and circumstances mentioned in paras (a) to (c). Native title does not come within these descriptions. In particular, it is inapt to describe native title as a mere “right-of-way”. Further, “right-of-way” is instanced in s 42(b) as a sub-category of “easement”, which is a specific type of interest long recognised in the law of real property and quite different from native title. I reject the submission that native title is within the express exceptions to indefeasibility.

As to whether registration is capable of extinguishing native title, reference has been made above to authorities concerning the nature of the Torrens system of land registration and the effect of the registration of dealings under statutes, such as the Real Property Act, that adopt that system. That effect, according to the authorities mentioned above, is to confer an interest in the land. If the relevant interest is inconsistent with native title, there is prima facie an extinguishment (unless extinguishment has already occurred, for example by reason of the grant of that interest).

Meanwhile, “act” is defined non-exhaustively by s 226 of the NTA and includes, relevantly, “the creation, variation, extension, renewal or extinguishment of any interest in relation to land or waters”. Considered in isolation, the registration of NSWLHC’s interest in the subject land was clearly an “act” within the meaning of the NTA if its effect was to confer an interest on NSWLHC.

The potential extinguishing effect of registration under Torrens title legislation on native title has been considered in several cases.

In Hayes v Northern Territory (1999) 97 FCR 32 at [111] (Hayes), Olney J considered a purported statutory lease which did not comply with the statute authorising its grant and was, in that sense, invalid. In considering whether this lease could constitute a PEPA under s 23B of the NTA (introduced in 1998), his Honour said:

This reasoning was criticised by Callinan J (with whom McHugh J agreed) in Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [876] (Ward) but was not referred to by other members of the Court in that case. It was effectively approved by RD Nicholson J in Daniel v Western Australia [2003] FCA 666 at [883]-[884] (Daniel), where his Honour said:

In Nyamal Palyku Proceeding (No 2) [2020] FCA 788 at [131] (Nyamal Palyku), Reeves J reached the same conclusion and expressed agreement with Olney J.

Meanwhile, in Jango v Northern Territory [2006] FCA 318; 152 FCR 150 (Jango), Sackville J held (obiter) that certain grants of fee simple estates between 1979 and 1994, upon which the Territory and the Commonwealth relied, were invalid by reason of the RDA and thus not effective to extinguish native title. The Commonwealth submitted that native title had nevertheless been extinguished before the commencement of the NTA by the registration of those interests. Sackville J considered this argument in detail at [675]-[705] and rejected it on the basis that the exceptions to indefeasibility under the Torrens title legislation conferred less protection on native title rights than on other unregistered interests that might be liable to be affected by registration of a freehold estate. This made the operation of the registration provisions inconsistent with s 10 of the RDA at the time the interests were registered (applying the reasoning in Mabo No 1), and invalid to that extent (at [701]-[702]). The result was that, had the applicants succeeded in establishing the existence of native title, that title was extinguished only by the validation provisions of the NTA (not earlier) and compensation under the NTA would be available. At [704]-[705], Sackville J rejected the simpler argument that registration under Torrens title legislation could not have any effect on native title if the earlier conferral of the relevant interest had not effectively extinguished it.

On appeal from the judgment of Sackville J, the Full Court did not find it necessary to engage with the detail of his Honour’s reasoning or the parties’ submissions on this point. Their Honours said (Jango v Northern Territory of Australia [2007] FCAFC 101; 159 FCR 531 at [111] (French, Finn and Mansfield JJ)):

Section 23(3)(b) of the NTA as in force in 1996 did not purport to extinguish any native title rights. It provided that the NTA did not “prevent” a particular category of acts from extinguishing native title, and is therefore relevant only to the extent that an act had that effect apart from the NTA. The reasoning in Hayes, set out above, is to the effect that registration under Torrens title legislation does not in itself have such an effect. The reasoning of Sackville J in Jango (outlined above) is at least implicitly to the contrary: his Honour did not accept that registration was necessarily incapable of affecting native title and instead considered the effect of the RDA. However, in so far as Sackville J disagreed with the reasoning in Hayes, that disagreement was strictly obiter and did not expressly engage with whether it was appropriate not to follow the reasoning of an earlier single judge decision. Despite having been strongly criticised by Callinan J in Ward, the Hayes reasoning was endorsed in Daniel and in Nyamal Palyku.

The Attorney-General submitted that Hayes and the later decisions that apply it are difficult to reconcile with the well-established conception of Torrens title as a system of “title by registration” in which, once an interest is registered, it is that registration that is the source of the proprietor’s rights rather than a pre-existing grant or dealing. The effect of those authorities, as encapsulated in City of Canada Bay Council v F&D Bonaccorso Pty Ltd [2007] NSWCA 351; 71 NSWLR 424 at [45] (Mason P, Tobias JA and Young CJ in Eq), is that “the previous title is extinguished and a new title certified as if there had been a new Crown grant”.

I agree with this submission and would add the following points.

In Abbey Laboratories Pty Ltd v Virbac (Australia) Pty Ltd (No 3) [2025] FCA 1179 at [145]-[147], Jackman J noted some of the problems attending the understanding of the circumstances in which it is appropriate for a single judge not to follow a decision of another judge which is commonly expressed as requiring satisfaction that the earlier decision is “plainly” or “clearly” wrong. Allsop CJ usefully discussed the factors relevant to the same issue at the appellate level in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; 281 FCR 181 (at [1]-[32]), Kerr and Mortimer JJ agreeing at [104]). The question involves finding an appropriate balance between two desiderata referred to by Jackman J at [146] – consistency and predictability on the one hand and adherence to correct legal principle on the other – although framing the question in that way presupposes that one disagrees with the earlier decision despite whatever persuasive force it has. Usually at least, a single judge should only decline to follow a decision of another single judge if they are firmly convinced that it is wrong (not merely that the contrary view is preferable) and with proper regard to the extent to which it has been followed or its correctness relied upon.

I have come to the view that the reasoning in Hayes at [111], Daniel at [883]-[884] and Nyamal Palykuat [131] is wrong and should not be followed. It is wrong, as explained above, because it misconceives the concept of extinguishment, the effect of registration under the Torrens system or both. It can be jettisoned without significant disruption of settled understandings of the law of native title because it does not seem to have been more widely followed; it was not necessary to the actual decisions in those cases; and it is contradicted (albeit also obiter) by the reasoning in Jango. It should also be noted that the conclusion that registration of an interest in land under Torrens title legislation is capable of extinguishing native title (where such extinguishment has not already occurred by reason of the grant of that interest) is only a preliminary step to working out the effect that such extinguishment is permitted to have, or taken to have had, under the provisions of the NTA. For example, as noted above, it is difficult to see how registration per se can constitute a PEPA under s 23B.

Applying this reasoning to s 23(3)(b), registration of the interest acquired by NSWLHC was an “act” occurring after the commencement of the NTA which, apart from the effect of that Act, extinguished any native title rights that survived after the compulsory acquisition. That is the case because registration had the effect of “a new Crown grant”. It was not part of the same “act” as the compulsory acquisition because it was later in time and had its own distinct effect on the existence of estates and interests in the controversial parcels.

It can be accepted, as NTSCORP submitted, that “giving effect to the purpose of the acquisition” in s 23(3)(b) does not refer simply to completing the acquisition itself. Such a construction would render s 23(3)(a) ineffective. However, depending on the circumstances, the “purpose of the acquisition” may include or be advanced by the conferral of an interest of a particular kind.

Here, the compulsory acquisition was expressed to be “for the purposes of the Housing Act 1912, the Housing Act 1976 and the Housing Act 1985”. The last of those Acts (the 1985 Housing Act) established NSWLHC and (by s 7) authorised it to perform functions under the earlier Housing Acts. The objects of the 1985 Housing Act, set out in s 4, included:

Section 10 of the 1985 Housing Act provided for the proceeds of sale of land vested in the NSWLHC to be paid into the Consolidated Fund. It thus expressly envisaged that land acquired by NSWLHC would be sold. Read with the objects set out in s 4, this indicates that a function of NSWLHC was to acquire undeveloped land which would be subdivided and sold to people for residential purposes. This was made explicit by the 1976 Housing Act, which conferred power on NSWLHC to acquire land (s 11) and to sell or otherwise dispose of land vested in it (s 14).

Given the statutory functions and powers of NSWLHC, the “purpose of the acquisition” in this case must be taken to be to enable NSWLHC to make the controversial parcels available for residential purposes, either by building residences and renting them to public housing tenants or (more likely) by subdividing it and selling lots. That purpose was advanced by bringing the land within the scheme of the Real Property Act, in at least two ways. One is that registration of a freehold interest gave certainty that (apart from recognised easements etc) there were no other interests that needed to be taken account of. The other is that any future subdivision and sale or lease would be much simpler if the land was within the system of registration.

Registration was, for these reasons, an act that came within s 23(3)(b). The result was that the NTA did not prevent that act from extinguishing native title. For the reasons set out above, extinguishment was a consequence of registration if native title was not already extinguished. The result is that, while the compulsory acquisition is to be treated (subject to the issues discussed below) as having merely suppressed any subsisting native title rights, because of s 23(3)(a), the subsequent registration extinguished those rights and was permitted to do so by s 23(3)(b).

The NTA was extensively amended by the Native Title Amendment Act 1998 (Cth) (the NTAA). Some of the provisions inserted at that time are considered in the next section of these reasons. Section 23 was repealed by the NTAA. However, that amendment was expressed to apply only to future acts taking place after the commencement of the NTAA (Schedule 5, Item 2). It therefore did not affect the validity of acts extinguishing native title which were permitted under s 23 as it stood prior to 1998.

The Land Council and the Attorney-General also submitted that the compulsory acquisition is a PEPA within the meaning of s 23B of the NT Act as it currently stands, which has the effect that it extinguishes any native title rights by operation of s 23E of the NTA and s 20 of the NT (NSW) Act. If correct, this is an additional foundation for the conclusion that any native title rights in the controversial parcels have been extinguished. It is not submitted, as I understand it, that the registration of NSWLHC’s interest in the subject land is capable of constituting a PEPA.

Section 23B is set out above at [21]. The definition of a PEPA is provided for present purposes by subsection (2), subject to exceptions and qualifications set out in later subsections.

As noted earlier, the expression “valid” should be understood to refer to consistency with the laws of the Commonwealth affecting the extinguishment of native title. Because the compulsory acquisition in the present case occurred after the enactment of the NTA, it must depend for its “validity” (to the extent that it affected native title) on the provisions of the NTA as in force at that time. As explained above, the compulsory acquisition was valid by operation of s 23 as it stood at the time of the acquisition. Section 23B(2)(a) is therefore satisfied. So too, clearly, is s 23B(2)(b).

As to s 23B(2)(c), in my view the vesting effected by the acquisition notice (which was expressed as “the land”) should be understood to amount to the vesting of “a freehold estate” within the meaning of subpara (ii). Such a grant achieves, at least, what would be achieved by a grant of freehold. Alternatively, the compulsory acquisition is to be taken to be the vesting of a freehold estate pursuant to s 23B(3).

Complexity arises in relation to s 23B(9B) and (9C). To a large extent this is because, although the compulsory acquisition was afforded validity by s 23(2) as described above, it was limited in its effect on native title rights by the application of the non-extinguishment principle. If it is a PEPA, however, it is now taken to extinguish native title by force of s 23E of the NTA and s 20(1) of the NT (NSW) Act. Further, s 23C(3) expressly disapplies s 15 of the NTA (which provides for the effect of “validation” on native title for acts attributable to the Commonwealth) and s 20(3) of the NT (NSW) Act does the same work in relation to acts attributable to the State. Thus, as Gleeson CJ, Gaudron, Gummow and Hayne JJ observed in Ward at [10], “any overlapping between the two extinguishment regimes is resolved in favour of Div 2B and the corresponding State and Territory provisions”. Accordingly, if the compulsory acquisition constitutes a PEPA, the result is that the former s 23(3)(a) is excluded and native title is extinguished.

In Northern Territory v Griffiths [2019] HCA 7; 269 CLR 1 at [34] (Griffiths HCA), Kiefel CJ, Bell, Keane, Nettle and Gordon JJ observed that “acts to which the non-extinguishment principle applies are not previous exclusive possession acts”. Section 23B(9B) was cited for this proposition. Gageler J agreed with their Honours’ reasons, subject to a qualification that is not presently relevant. If this proposition is applied in the present case, it must follow that the compulsory acquisition does not constitute a PEPA.

However, several things must be noted about this statement. First, s 23B(9B) does not mention the non-extinguishment principle or direct itself expressly to any current or former provisions of the NTA. In its terms, it refers to a characteristic of the legislation “by or under” which the act was “done”. That legislation, in the present case, is the Acquisition Act (which certainly did not “expressly provide” that acquisitions effected under its provisions did not extinguish native title). Their Honours did not explain how subsection (9B) was understood to produce the result that acts to which the non-extinguishment principle applied did not constitute PEPAs. I have considered whether the footnote reference to s 23B(9B) might be a typographical error. While this is a possibility, it is not clear what other provision their Honours might have had in mind. Section 23B(9C) also does not refer to the non-extinguishment principle or produce the result identified by their Honours in any obvious way.

Secondly, as the Attorney-General points out, neither s 23B(9B) nor the non-extinguishment principle was in issue in Griffiths HCA. Section 23B(9B) was not mentioned in the written submissions or oral argument. The issues in the appeal were confined to the assessment of compensation.

Thirdly, having stated that acts to which the non-extinguishment principle applies were not PEPAs, their Honours observed that this was “…a point to which it will be necessary to return”. At [36], having observed that the majority of the “compensable acts” in issue were PEPAs, their Honours said:

The point was not taken up again. It appears to have been part of the basis on which the Justices who formed the majority identified the compensable acts that they regarded as raising live issues in relation to compensation, but not the subject of any controversy between the parties. Edelman J appears to have understood the scope of the compensable acts and the exceptions slightly differently (at [258]-[260]) but nothing turns on this.

Fourthly, the effect on native title of each of the extinguishing acts that were considered in Griffiths was agreed before Mansfield J at first instance (Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 at [73]) and in the Full Court (Northern Territory v Griffiths [2017] FCAFC 106; 256 FCR 478 (North ACJ, Barker and Mortimer JJ) at [11] and [14]-[25]). The agreed starting point of the parties was that a subset of the acts were Category D past acts and that these were not PEPAs.

Observations on that issue in the reasons in Griffiths HCA are therefore not binding: CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 at [13] (Gleeson CJ, Gummow and Heydon JJ). Nor can the bald assertion of the majority in Griffiths HCA that acts to which the non-extinguishment principle applies are not PEPAs be regarded as “seriously considered dicta” in the sense discussed in Hill v Zuda Pty Ltd [2022] HCA 21; 275 CLR 24 at [25] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ).

My researches have not brought to light any other case in which it was held that Category D past acts, or more generally acts to which the non-extinguishment principle applies, are ipso facto not PEPAs. Why the parties proceeded on this basis in Griffiths (and why Mansfield J accepted their agreement as a proper starting point) is therefore unclear. There was some discussion by the majority in Ward of two leases which became Category D past acts and were held not to be PEPAs; however, this conclusion was reached because they came within a specific exception in the validation legislation enacted by the Northern Territory (mirroring s 23B(9A) of the NTA) relating to the grant or vesting of land for the purpose of national parks (at [448]-[453]).

Reference was made earlier to s 23C(3) and the passage in Ward noting that other validation regimes are excluded when an act comes within the concept of a PEPA in s 23B. There is at least one indication in the Explanatory Memorandum to the Bill for the NTAA (the Native Title Amendment Bill 1997) that it was intended, by introducing the concept of a PEPA, to bring about the complete extinguishment of native title in some cases where the relevant act was previously subject to the non-extinguishment principle. At [5.28], the following explanation was given:

Subsections 23B(9A) to (9C) were part of the section as enacted by the NTAA, having been inserted by Government amendments during its passage through the Parliament. A Supplementary Explanatory Memorandum circulated in relation to these amendments said, in relation to what became subsection (9B):

This passage tends to confirm that s 23B(9B) directs attention to the legislation pursuant to which an act was done rather than to the effect of any provision of the NTA by which it was validated. That is clearly the more natural reading of the subsection. While there would obviously have been significant merit in constructing the PEPA regime in a way that would preserve the effect of pre-1998 validation under the NTA, it would be an error to assume that that was Parliament’s intention and then characterise it as a purpose of s 23B (Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; 248 CLR 1 at [28] (French CJ, Hayne, Kiefel and Bell JJ)). There is no sound textual foundation for interpreting s 23B in that way, and it contradicts the passages in the Explanatory Memoranda set out above.

In an earlier judgment in the Griffiths proceeding ([2014] FCA 256 at [113]-[118]), having considered detailed submissions on the point, Mansfield J held that the words “apart from this Act” in s 23B(9C)(a) had the result that that paragraph did not apply to an act that would have been rendered invalid by the RDA in the absence of the validating provisions of the NTA. In other words, a grant to a government entity does not escape the operation of s 23B(9C) merely by being an act that would extinguish native title in the absence of any relevant Commonwealth legislation; what must be considered is the effect that the act would have if the NTA was not in operation but the state of the law (including the application of the RDA at relevant times) was otherwise the same. His Honour’s reasoning on this point does not appear to have been referred to in later cases, but Perry J proceeded on the same basis in Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936; 373 ALR 667 at [29]-[33] (Tweed Byron). There is no reason not to follow this reasoning (which constitutes one way in which the reasoning in Mabo No 1 remains relevant).

What follows from this construction of s 23B(9C)(a) was outlined in Tweed Byron as follows (at [30]).

Tweed Byron concerned an acquisition of land under the Public Works Act 1912 (NSW) which operated in a similar manner to the compulsory acquisition in the present case, in that it extinguished all pre-existing interests including native title. No distinction was made between native title and other interests in relation to the right to compensation. Perry J held that that acquisition came within s 23B(9C)(a). NTSCORP accepted that Tweed Byron was not distinguishable in this respect. This is correct. Native title rights were brought within the class of “interests” that could be acquired under the Acquisition Act by s 7A of that Act; s 37 provided for compensation (assessed under Part 3) for the owners of all such “interests”; and s 37A allowed for requests by native title holders for such compensation to be given in non-monetary form.

The compulsory acquisition was a PEPA. By operation of s 23E of the NTA and s 20(1) of the NT (NSW) Act, it is taken to have extinguished native title.

If this conclusion is correct it means that s 23E of the NTA and s 20 of the NT (NSW) Act have displaced the earlier effect of s 23(2) and (3) of the NTA (discussed above) on the compulsory acquisition. It is taken to have extinguished native title. On that basis, the analysis of the registration of title above becomes irrelevant: the registration must now be taken to have had no additional extinguishing effect.

Because of the complexities that arose in relation to extinguishment, the Land Council also submitted that a determination that native title does not exist could be made on the basis that no claim had been made and native title could not be proved: that is, that no group of persons holds native title in the controversial parcels even if neither the compulsory acquisition nor the registration was effective as an extinguishing act. NTSCORP did not actively oppose that submission as a basis for a determination but appropriately urged caution in accepting it.

As noted earlier, the notification requirements in relation to the present application have been met. The result is that notice of the application for a negative determination has been given by the Native Title Registrar to the general public (albeit, as noted in Mace at [92]-[93], in a manner whose practical effectiveness can be questioned) and to the persons and entities referred to in s 66(3).

Those persons and entities include any registered native title claimant for the area covered by the application, any registered native title body corporate for any of that area and any representative Aboriginal/Torres Strait Islander body for any of that area (in this case, NTSCORP). The list of persons and entities to whom the application was sent in the present case indicates that no registered native title claimant or registered native title body corporate was identified for any of the subject land (including, relevantly, the controversial parcels) by the Registrar. The application was also given (as required by s 66(2)) to the Attorney-General, upon whom the Court relies both as a model litigant and as the Minister responsible for ensuring that all relevant submissions are put in the public interest. Evidence filed by NTSCORP indicates that it has sought to perform its function of protecting native title to the extent possible by attempting to notify one individual and one organisation, who are the only persons or organisations identified on its Notifications Database as having interests in the subject land or nearby land.

No Aboriginal person or potential claim group has sought to be joined as a respondent to the Land Council’s application; and, according to analysis performed by the NNTT, no claimant application has been made in respect of any part of the subject land. NTSCORP has not received any response to its attempts to contact the potentially interested parties listed on its database.

In Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 at [10] (Wagonga) Jagot J set out a series of general principles, by reference to the reasons of the Full Court in Mace, which included the following.

The principles numbered (9) to (13) in the above extract explain why the Court should be slow to regard the mere absence of a contradictor as sufficient to discharge a non-claimant applicant’s onus of proof. If a clear finding can be made to the effect that any native title rights have been extinguished, that is a preferable basis for the making of a negative determination where no claimant group seeks to be joined and questions of connection have not been agitated. In such circumstances, a determination based on extinguishment does not prejudice any future claims in relation to neighbouring land (or for that matter compensation proceedings in respect of the land which is the subject of the determination). It is for this reason that I have dealt with the extinguishment issues first and at some length. The reasoning that follows (which applies to the whole of the subject land including the controversial parcels) is unnecessary if my conclusions on extinguishment are correct.

For the same reasons, NTSCORP urged that any finding in relation to the absence of native title should be expressed in terms that apply only to the land which is the subject of these proceedings. This does not present difficulty in the present case because, as outlined below, the evidence only supports a finding in relation to the land that is the subject of the proceedings. If a finding were expressed in terms that implicitly (or for that matter explicitly) denied the existence of native title in other land nearby, future claimants in respect of such land could rely on the principle that findings of fact in one case do not bind a court in future cases (see eg Herzfeld P and Prince T, Interpretation (3rd ed, Lawbook Co, 2024) at [33.70]).

While a significant degree of caution in finding an absence of native title in the absence of a claimant is warranted, that consideration should not be an insuperable barrier for a non-claimant applicant who has sought a negative determination in good faith and ensured that the relevant notification procedures have been undertaken. While a non-claimant applicant can properly be expected to marshal the evidence necessary to sustain a submission that native title has been extinguished, proving a negative in relation to the existence of any Aboriginal people with a continuing connection to the land presents quite a different challenge. Such an applicant may not be able to do more than to show that its application has been publicised and no native title claimant has come forward.

In Metropolitan Local Aboriginal Land Council #2 v Attorney-General of New South Wales [2025] FCA 610, Hill J made a negative determination on the footing that the applicant had satisfied the burden of proving on the balance of probabilities that no native title existed. At [28], having referred to Wagonga, his Honour continued:

The second of these points is important and, with respect, correct. It is for this reason that I have not given significant weight to NTSCORP’s observation that no anthropological report has been prepared in connection with the controversial parcels or the subject land more generally. That observation points only to an absence of knowledge; it does not, as Stellios J noted in Coffs Harbour and District Local Aboriginal Land Council v Attorney-General of New South Wales [2025] FCA 755 at [54], point to any native title claim being objectively arguable.

In the present case the Land Council relies on four matters.

In the absence of any evidence pointing to the potential for arguable native title claims (such as evidence of Aboriginal sites on the subject land or use of the land by Aboriginal people), these matters are sufficient to sustain a finding that no native title exists in the subject land. Accordingly, if necessary, I would find that no native title exists in the land which is the subject of these proceedings.

Native title has been extinguished in respect of each of the parcels of land the subject of the Land Council’s application. There will be a determination in substantially the terms sought in that application.