New South Wales Aboriginal Land Council v New South Wales Native Title Services Limited

REASONS FOR JUDGMENT 1 What is presently before the Court is a non-claimant application filed on 28 July 2005 by Illawarra Local Aboriginal Land Council ('Illawarra LALC') seeking a determination under s 61(1) of the Native Title Act 1993 (Cth) ('the Act') that native title does not exist in respect of certain land at Kembla Grange in the State of New South Wales. 2 Pursuant to a notice of motion filed 2 February 2007 orders were made earlier today that New South Wales Aboriginal Land Council ('NSWALC') be substituted for Illawarra LALC as the applicant in the proceedings and that Illawarra LALC be joined as a respondent in the proceedings. 3 As now constituted NSWALC is the applicant and the respondents are New South Wales Native Title Services Limited ('NTS') and Illawarra LALC. 4 The application concerns land having an area of 2.715 hectares located in the Wollongong Local Government area, Parish of Kembla, County of Camden, having a frontage to West Dapto Road, Kembla Grange. It is described as Lot 323 in Deposited Plan number 823189 ('the Land'). Receipt of the application was acknowledged by the National Native Title Tribunal ('the Tribunal') by letter dated 1 August 2005. 5 NSWALC is a statutory corporation constituted by s 104 of the Aboriginal Land Rights Act 1983 (NSW) ('the Aboriginal Land Rights Act'). 6 The functions of NSWALC are set out in s 106 of the Aboriginal Land Rights Act. Section 106(1)(c) relevantly provides: '106(1) The functions of the New South Wales Aboriginal Land Council are as follows: … (c) to acquire land on its own behalf or on behalf of or to be vested in a Local Aboriginal Land Council and to transfer land acquired on behalf of a Local Aboriginal Land Council to such a Council, …' 7 The Land and other adjacent land was the subject of a claim number 6656 by the NSWALC under s 36(2) of the Aboriginal Land Rights Act. That claim was granted in respect of part of the land claimed in accordance with s 36(5)(a)(ii) on 28 June 2002. A request for transfer of the Land would appear to have been lodged by the Department of Land and Water Conservation on or about 15 July 2002 resulting in NSWALC becoming the registered proprietor of the land which is now the subject of Folio Identifier 323/823189. 8 Dealings with the land are restricted in accordance with ss 40 and 40AA of the Aboriginal Land Rights Act. Section 40AA(1) of that Act relevantly provides: '40AA(1) The New South Wales Aboriginal Land Council … may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).' 9 Section 81 of the Act confers jurisdiction on the Court to hear and determine applications that relate to native title. Section 13(1)(a) of the Act relevantly provides: '13(1) An application may be made to the Federal Court under Part 3: (a) for a determination of native title in relation to an area for which there is no approved determination of native title; …' 10 The term 'determination of native title' is defined in s 225 of the Act as: '225 … a determination whether or not native title exists in relation to a particular area (thedetermination area) of land or waters and, if it does exist, a determination of …' 11 A determination of native title made by the Court on an application under s 13(1)(a) of the Act is an approved determination of native title (see s 13(3)(a) of the Act). 12 NSWALC submits that as the registered proprietor of the land it is entitled to bring the application as the holder of a non-native title interest in relation to the whole of the area in relation to which the determination is sought within the meaning of s 61(1) of the Act (which falls within Part 3). 13 The application is a 'non-claimant application' within the meaning of s 253 of the Act. 14 The evidence before the Court indicates that the notice provisions set out in ss 63 and 66 of the Act have been complied with. A letter dated 22 August 2005 from the Tribunal describes the measures taken to comply with s 66(3). The three month notification period ended on 6 December 2005. 15 The Minister for Lands for the State of New South Wales filed a notice of appearance on 18 August 2005 and subsequently filed a notice that he wished to cease to be a party to the proceedings on 5 December 2005. On 20 September 2005 NTS sought to become a party. On 13 December 2005 the Court declared that it was a party pursuant to s 84(5) of the Act. 16 Apart from Illawarra LALC no one else has sought to appear or has notified the Court of any interest in the present application. When the matter was called three times outside the Court earlier today there was no response. 17 The applicant read the affidavits of Basil Smith, Co-ordinator of the Illawarra LALC affirmed 16 February 2006; Mishka Holt, a Legal Officer employed by NTS, affirmed 27 November 2006; Linda Whelan, Principal Legal Officer of the applicant, affirmed 31 January 2007; Bruce Stephen Woolf, Solicitor for the applicant and for the second respondent, sworn 2 February 2007 and Roy Kennedy, the Sites Officer of Illawarra LALC, affirmed 5 February 2007. 18 The annexures to Mr Woolf's affidavit set out the details of searches undertaken on 19 May 2005 and 1 February 2007 for all other claims under the Act and/or the Aboriginal Land Rights Act. With respect to searches undertaken on 19 May 2005 a search result of nil was recorded against each register type save for the register type referred to as 'Unregistered Claimant applications'. The result of that search provided a reference to a Tribunal claim NC98/23. The information provided by the Tribunal accompanying the search indicates that the land the subject of claim NC98/23 which relates to about 104 square metres being part of Lot 8 in DP 706490 does not overlap with any part of the Land. 19 In any event, a further search of the same registers undertaken on 1 February 2007 produced a search result of 'nil' against each register type. In addition, the Tribunal's Geospatial Unit conducted a search of the registers on 12 December 2005 to identify any native title application affecting any part of the land and advised that 'no applications fall within the external boundary of the non-claimant application NSD1272/05'. 20 On 17 December 2004 NSWALC wrote to Illawarra LALC and stated, amongst other things: '… As previously advised, NSWALC is prepared to transfer the property to Illawarra LALC, provided you fully fund the resolution of native title issues as required under s40AA of the Aboriginal Land Rights Act 1983.' 21 In a letter dated 19 July 2002 to N.J. Papallo & Co NSWALC stated: 'No decision has been made at this stage but it is the policy of the New South Wales Aboriginal Land Council to transfer any land granted to it to the Local Aboriginal Land Council in whose area that the land is situated. In this case it is the Illawarra Local Aboriginal Land Council …' 22 On 5 October 2005 NSWALC again wrote to Illawarra LALC stating in respect of the land: 'The New South Wales Aboriginal Land Council ("NSWALC"), as advised on a number of previous occasions, intends to transfer the property to ILALC once the restriction under s.40AA of the Aboriginal Land Rights Act 1983 is removed from the title.' 23 In her affidavit affirmed 31 January 2007 Linda Whelan deposed as follows: '11. NSWALC has not resiled from this position and will transfer the Land to ILALC on the basis that: (a) ILALC will meet all costs associated with any non-claimant native title determination in respect of the Land; (b) a determination is made under s.61(1) of the Native Title Act 1993 (Cth) to the effect that no native title rights and interests exist in relation to the Land; and (c) the s.40AA notation is removed from title at ILALC's cost so that NSWALC may transfer the Land to ILALC.' 24 Later in her affidavit Ms Whelan deposed: '13. Nevertheless NSWALC, as the registered proprietor of the Land, does not oppose any determination this Honourable Court sees fit to make further to ILALC's non‑claimant application, including an order in the terms sought by ILALC.' 25 I am satisfied that no prior approved determination of native title has been made in relation to the land. 26 The applicant submits that the application may be dealt with under s 86G of the Act. Section 86G relevantly provides: '86G(1) If, at any stage of a proceeding in relation to an application under section 61, but after 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. (2) For the purpose of this section, an application is unopposed if the only party is the applicant or 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.' 27 Each of NTS and Illawarra LALC have provided s 86G notices informing the Court that the determination sought by the applicant is not opposed. 28 I am satisfied that the application is unopposed within the meaning of s 86G, that the Court has jurisdiction to hear the application and make the orders sought (see ss 13(1)(a) and 81; see also s 87 of the Act); that the applicant has standing to bring the application (see ss 61(1) and 253 of the Act); that appropriate notice of the application has been given (see ss 63 and 66 of the Act) and that no prior determination of native title has been made in relation to the Land. 29 Orders of the kind sought by the applicant have previously been made; see: Cruse v New South Wales Native Title Services Limited [2006] FCA 1124; Hillig as Administrator of Worimi Local Aboriginal Land Council v NSW Native Title Services Limited [2006] FCA 1184 and Forster Local Aboriginal Land Council v New South Wales Native Title Services Limited [2006] FCA 1455. 30 I am satisfied that an order should be made pursuant to s 86G of the Act. Accordingly the Court determines that no native title exists in relation to the Land described above as Lot 323 DP 823189. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.