Mudgee Local Aboriginal Land Council v Attorney General of NSW

REASONS FOR JUDGMENT 1 This is a non-claimant application, filed 1 June 2011, for a declaration that no native title exists in certain land at Mudgee. The non-claimant application is by the present registered owner of the land in question, Mudgee Local Aboriginal Land Council (the Mudgee LALC), the land being lot 7003 in Deposited Plan 1020312. The land is situated outside the township of Mudgee, adjoining the Mudgee waste disposal depot. The application is made pursuant to s 61 of the Native Title Act 1993 (Cth) on the basis that the Mudgee LALC is "a person who holds a non-native title interest in relation to the whole of the area, in relation to which the determination is sought." 2 Mudgee LALC obtained its fee simple interest in the land pursuant to an application which it made to the relevant Minister for the State of New South Wales under the Aboriginal Land Rights Act 1983 (NSW). The Mudgee LALC has been the owner of the land since the grant of that application on 18 June 2009. In accordance with the provisions of the Aboriginal Land Rights Act, Mudgee LALC, as set out in its written submissions, holds its land subject to any native title rights and interests which existed at the time of transfer. Further, pursuant to s 42(1) of the Aboriginal Land Rights Act, the land council cannot deal with the land unless the land is the subject of an approved determination of native title. Section 40 of the same Act defines "deal with land" broadly, and dealings include making a development application in relation to land. The Mudgee LALC wishes to make a development application in relation to this land, it being proposed to make an application to the local council for development consent to construct a building for the purpose of an Aboriginal training centre and a keeping place of Aboriginal heritage. 3 It is the desire to make this development application which I presume has prompted the making of the non-claimant application. The application is supported by three affidavits. The first is the affidavit of Aleshia Maree Lonsdale, who is the chairperson of the Mudgee LALC and has been so since 2008. Her affidavit confirms the advertising and notification of the non-claimant application in 2011. There was a native title application in relation to the land, being proceedings NSD 912/2009, by the Wellington Valley Wiradjuri People but, otherwise, Ms Lonsdale is not aware of any other person or group that asserts that native title continues to exist in relation to the land. I dealt with the application of the Wellington Valley Wiradjuri People in proceedings NSD 912/2009, and those proceedings were dismissed (see Violet Carr on behalf of the Wellington Valley Wiradjuri People v Premier of New South Wales [2013] FCA 200). As noted in the written submissions of both the Mudgee LALC and the first respondent, the Attorney-General of New South Wales in his capacity as State Minister under the Native Title Act (the Attorney-General), the Wellington Valley Wiradjuri People did not apply to be joined as parties to this proceeding. 4 Ms Lonsdale is 32 years old and has grown up in and around the Mudgee area. She passes the land every time she goes to the local tip, but otherwise has had no dealings with the land. However, she is aware that an Indigenous Heritage Assessment Report over the land was carried out in response to a then proposal by the council to expand the waste depot into the land. The report did not identify any evidence of Aboriginal occupation or Aboriginal heritage sites within the land. Ms Lonsdale, for her own part, is not aware of any hunting, fishing or food gathering, or the exercise of any native title rights by indigenous people on the land. The Mudgee LALC has used the land for the purpose of conducting training days for the local Aboriginal people, including heritage assessment survey training. This training has been carried out on the land, but Ms Lonsdale is aware that no place of any Aboriginal significance or importance under traditional law or custom has been found on the land. She says that, to her knowledge, "no items of Aboriginal cultural heritage, or Aboriginal deposits, objects or material evidence relating to the Aboriginal habitation of the land had been found in or on the land." In addition, Ms Lonsdale deposes to the fact that the Mudgee LALC has consulted with local Aboriginal people who have a reputation within the indigenous community as being knowledgeable about matters of traditional law and custom. Two of those people, David Maynard and Warranha Ngumbaay, have given affidavits in support of the application. 5 The second affidavit is that of David Frederick Maynard, who is 75 years old. He says that his great grandmother was a Worimi woman and his father was Worimi. His connection with the Wiradjuri country began in the 1950s, he moved to Mudgee in the late 1950s and his five children, grandchildren and great grandchildren have been born and raised in Wiradjuri country and are Wiradjuri. He was formerly employed as a Senior Aboriginal Cultural Heritage Officer for the Murong Gialinga Aboriginal and Torres Strait Islanders Corporation and the Mudgee LALC, as well as being a founding member of both. He has also been a member and board member for both organisations since their inception, and he is a representative on the Central West Catchment and Management Authority Aboriginal Reference Group for the Mudgee region. Mr Maynard says: I have had the privilege of being endorsed by the Wiradjuri Council of Elders to carry out work within this part of Wiradjuri country for the protection and management of Wiradjuri culture and heritage because of my extensive knowledge of the cultural heritage of the area and my family connection to Wiradjuri people. As a recognised elder of the Mudgee community I have been given responsibility and authority to speak for the protection, conservation and management of the Wiradjuri Cultural Heritage Sites within the Mudgee region of Wiradjuri country. 6 Mr Maynard says that he supports the application for a determination that native title does not exist in relation to the land. He has been familiar with the land since he has lived in Mudgee, but did not have any cause to survey it for the presence of Aboriginal cultural heritage materials until 2008 when he participated in the Aboriginal Cultural Heritage Assessment, which was carried out in connection with the proposed expansion of the Mudgee waste management facility. As part of the survey, the land was assessed for the presence of any Aboriginal cultural heritage materials. Mr Maynard says that during his assessment and survey he found no Aboriginal sites. Since the Mudgee LALC was granted title to the land in 2009, Mr Maynard has visited the land more regularly and still has not found any place of any Aboriginal significance or importance under traditional law and custom. Mr Maynard says that he has worked extensively in this region, and based on his cultural knowledge of the surrounding area and the land, he is of the opinion that the land is of low cultural significance, and does not contain any significant or sacred Aboriginal sites. Further, he is not aware of any person who claims that the land has any significance or importance under traditional law or custom. He concludes with this statement: Although I am a Wiradjuri Elder I do not consider that there is any continuing association of any significance between the land and the people who claim to be holders of Native Title under the Wellington Valley Wiradjuri People Native Title Claim. I am not aware of any other person who claims that native title continues to exist in relation to the land. 7 The third affidavit, that of Warranha Ngumbaay, specifies that Ms Ngumbaay is a woman of Wiradjuri descent, descended from her grandmother, Pearl Wade, who was Wiradjuri. She is a member of the Mudgee LALC and was a founding member when it commenced in 2003. She says she was born in Mudgee and Mudgee is her spirit country, and in accordance with the Wiradjuri custom, she identifies and is accepted as a Wiradjuri woman. She, too, supports the application for a determination that native title does not exist in relation to the land. Ms Ngumbaay says that she has been familiar with the land all her life, which was known as the Munna Reserve, but she did not walk over it until it was handed back to the Mudgee LALC. She previously did not walk over the land, as it was not a place of any particular Aboriginal significance under traditional law. According to Ms Ngumbaay, she, too, is not aware of any special traditional significance or importance of the land under traditional law and custom. She does not know any person who claims the land has any special significance or importance under a traditional law. She says that, as a caretaker of country with responsibility to maintain cultural practices, she regularly visits important sites to carry out cultural obligations. The land, however, is not one of these places. Ms Ngumbaay concludes that: [A]lthough I consider myself an Elder of the Wiradjuri people and a traditional owner of the Land, I do not consider that in relation to the Land that there is any continuing association of any significance between the Land and the people who claimed to be holders of native title under the Wellington Valley Wiradjuri People native title claim. I am not aware of any other person who claims that native title continues to exist in relation to the land. 8 As I have said, the written submissions of both the applicant and the Attorney-General deal with all of the relevant issues in a most helpful manner. As the applicant has said, the conditions for the making of the order sought are: first, that the application has been advertised in accordance with s 66 of the Native Title Act - there is evidence that this has been done; secondly, that the area is not covered by an application for a determination that native title does exist - again, this condition is satisfied; thirdly, that there are no persons who oppose the application after the end of the notice period. As I have said, this condition is currently satisfied. Lastly, the Court must be satisfied that an order in or consistent with the terms sought by the applicant is within the power of the Court. The order sought is within the power of the Court, and the question is whether I am satisfied on the evidence which is before me that the negative proposition, that is, that native title does not exist, has been made out evidence to the relevant civil standard. 9 The applicant accepts that it bears the onus of proof and has sought to discharge the onus by the affidavits to which I have referred. First, the affidavit evidence from people who identify as elders of the Wiradjuri people in the local Mudgee area is of critical significance in this regard. As noted in the applicant's submissions, by s 223 of the Native Title Act, native title is defined to require that there be a group holding native title rights and interests, and that the rights and the interests must be possessed under the traditional laws and customs observed by the group. The people must be connected to the land by those laws and customs. The requirement of traditional law means the adherence to the law and the connection to the law and the land must be continuous, and must be passed down from generation to generation. Second, and again,, as set out in the applicant's submissions, there is no evidence other than the Wellington Valley Wiradjuri native title claim, which was dismissed earlier this year, that any person does assert native title rights and interests in relation to the land and, more significantly, the Wellington Valley Wiradjuri People did not apply to become a party to this application by the Mudgee LALC. The third significant plank in the evidentiary foundation for the making of the application, of course, is the three affidavits to which I have referred, which show that other knowledgeable local elders have not, either by their own knowledge or by investigation, been able to identify any traditional law and custom that relates to the land. Indeed, they say that the land is not of any special cultural significance. 10 While I accept the proposition that the absence of sites of significance does not, as the applicant put it, conclusively demonstrate that native title does not exist on the land, I also accept the applicant's proposition that what is significant, indeed critical, for the present application, is that local Aboriginal people, who are regarded as knowledgeable in cultural matters, have not identified themselves to have any connection to the land by law and custom. Nor has any other person been so identified, and there is no relevant evidence of occupation or use of the land under traditional law. For this reason, I accept also the applicant's ultimate submission that, to the extent that the applicant has the ability to bring forward evidence regarding the cultural status of the land, the evidence indicates that there is no group of persons who hold rights and interests in the land under traditional law and custom. 11 The position of the Attorney-General, as set out in the written submissions which have been filed, is that the Attorney-General neither consents to nor opposes the application. The submissions made are intended to assist the Court by setting out the applicable law and the relevant approach to be taken consistent with legal principles. The Attorney-General's submissions perform that function. The Attorney-General also has made available material which has been tendered as an exhibit in the proceedings, the effect of which is to identify the historical tenure of the land from 1868. It is apparent from that material that, while it is possible that a special lease might have extinguished native title over part of the land, there is insufficient evidence for any conclusion of extinguishment to be reached one way or another. However, this is not the basis upon which the applicant makes the application. The application is made on the basis that there is evidence sufficient to satisfy me of the negative proposition of the absence of native title in the land, by reason of the contemporary or current position of knowledgeable local Aboriginal people. It is that evidence which I accept, and consider to be sufficient to establish the relevant state of satisfaction that there is no native title group holding native title rights and interests in the land the subject of this particular application. 12 In these circumstances, on the basis of the evidence which I have identified, I make the following declaration: No native title exists in the land described as all of lot 7003 in Deposited Plan 1020312 and located at 171 Hill End Road, Caerleon via Mudgee, in the local government area of the Mid Western Regional Council, parish of Munna, county of Wellington, State of New South Wales. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.