Stockland (Constructors) Pty Ltd v Allan Richard Carriage

• 23 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5513/02 STOCKLANDS (CONSTRUCTORS) PTY LTD v ALLAN RICHARD CARRIAGE JUDGMENT 1 This is an application by the plaintiff, Stocklands (Constructors) Pty Ltd, for an order pursuant to s 74MA of the Real Property Act 1900 (NSW) (the Act) that caveat number 9096593A (the caveat) be withdrawn within twenty-four hours from the date of the order. 2 This matter was first before Hamilton J, as Duty Judge, for hearing on 21 November 2002. Hamilton J granted Mr A. Oshlack leave to appear for the defendant for the purpose only of making application for an adjournment. Ms RS McColl SC leading Ms PM Lane, of counsel, appeared for the plaintiff. Over opposition, Hamilton J granted the defendant an adjournment and placed the matter in the Duty List before me for hearing on 3 December 2002. His Honour adjourned the matter so that the defendant could obtain counsel to argue the matter. His Honour's reasons record his view that he regarded the matter as both difficult and novel and that the Court would be greatly assisted by submissions of counsel for the defendant. 3 On 3 December 2002 the defendant advised the Court that he had been unable to obtain legal representation, however no application was made for an adjournment. Application was made for leave to allow Mr Oshlack, who is not a lawyer, to call evidence and address the submissions on behalf of the defendant. Although opposed, I allowed Mr Oshlack to appear for reasons that appear in my judgment in respect of that application. The matter proceeded on 3 December 2002 and by reason of other urgent matters in the list, was adjourned to 4 December when the hearing concluded and I reserved my judgment.

4 The caveat was lodged by the defendant, Allan Richard Carriage, on 4 November 2002 in respect of properties owned by the plaintiff at Sandon Point, North Wollongong. Those properties are identified as: Property One: Lots 1 and 2 DP 365268 being the whole of the land comprised in Certificate of Title Auto Consol 6183-216; Property Two: Lot 2, DP 588060, being the whole of the land comprised in Certificate of Title Folio Identifer 2/588060; Property Three: Lot 3, DP 588060, being the whole of the land comprised in Certificate of Title Folio Identifer 3/588060; Property Four: Lot 4, DP 231244, being the whole of the land comprised in Certificate of Title Folio Identifer 4/231244; and, Property Five: Lot 2, DP 595478, being the whole of the land comprised in Certificate of Title Folio Identifer 2/595478. 5 Schedule 1 of the caveat is in the following terms: SCHEDULE 1: Estate or interest claimed Nature of the estate or interest in the land/registered dealing · Aboriginal Traditional Owner · Custodial ownership and/or equitable interest in Aboriginal Objects on and beneath surface of the land By virtue of the instrument referred to below Nature of Instrument Date Parties i. Real Property Act 1900 Williams vs Andersen ii. National Park & Wildlife Service 1974 sect 87(a) iii. Racial Discrimination Act 1975 section 9 & 10

By virtue of the facts stated below Caveator is a Traditional Owner of Aboriginal Objects on or below the surface of land pursuant to NPWS Act and/or Racial Discrimination Act. Caveator has proceeding in Land and Environment Court to Protect Aboriginal Objects from destruction. Caveator has equitable interest in Aboriginal objects wholly or in coexistence with Crown. Certain rights Real Property Act see Williams vs Anderson - High Court. 6 The defendant made the Statutory Declaration in paragraph K of the caveat on 4 November 2002. The caveat prevents the recording in the Register of any dealing other than a plan affecting the estate or interest claimed by the defendant as set out in Schedule 1. The plaintiff submitted that by reason of s 3 of the Act the caveat prevents registration of its plan of subdivision, required to be registered under Part 23 of the Conveyancing Act 1919 (NSW). 7 Properties One to Four inclusive were part of the land originally granted to Cornelius O'Brien by Crown grant on 1 May 1833. Property Five was part of the land granted by Crown grant to James Tweeddie on 30 January 1837 and James Christison on 20 May 1837. Properties Two to Five inclusive were transferred to the plaintiff by the successor in title on 31 May 1999 and Property One was transferred to the plaintiff by the successor in title on 1 June 2000. 8 The plaintiff intends to develop some properties for public open space and others for domestic residential use. Before the subdivision works were carried out, environmental and heritage impacts of the works were required to be assessed and a number of permits needed to be obtained. 9 The plaintiff's plan is to proceed with the development in stages one to six. On 8 October 2001 the Land and Environment Court approved the plaintiff's development applications in respect of stages two to six, which included Lot 2 of Property One, part of Property Four and the whole of Property Two. On 2 November 2001 the Land and Environment Court granted the plaintiff's application for subdivision in respect of stage one, which included Lot 1 of Property One and Property Four.

10 As part of the process of obtaining development consent under the Environmental Planning and Assessment Act 1979 (NSW), an investigation was carried out as to whether there were any Aboriginal artefacts within the development site and an assessment was made of the impacts of the proposed development upon any artefacts. For that purpose the plaintiff obtained permits from the Director-General of the National Parks and Wildlife Service (the Director-General) pursuant to s 87 of the National Parks and Wildlife Act 1974 (NSW) (NPW Act). 11 The NPW Act defines "relic" in s. 5 as: … any deposit, object or material evidence (not being a handicraft made for sale) relating to indigenous and non-European habitation of the area that comprises New South Wales, being habitation both prior to and concurrent with the occupation of that area by persons of European extraction, and includes Aboriginal remains. 12 Part 6 of the NPW Act is entitled "Relics and Aboriginal places". Section 83 provides: 83. Certain relics to be Crown property

(1) Subject to this section: (a) a relic that was, immediately before the commencement day, deemed to be the property of the Crown by virtue of s 33D of the Act of 1967, and (b) a relic that is abandoned on or after that day by a person other than the Crown, shall be, and shall be deemed always to have been, the property of the Crown. (2) Nothing in this section shall be construed as restricting the lawful use of land or as authorizing the disturbance or excavation of any land. (3) No compensation is payable in respect of the vesting of a relic by this section or section 33D of the Act of 1967. 13 The Act of 1967 is defined as the National Parks and Wildlife Act 1967 (the 1967 Act). That Act was amended in 1969 by Act No 78, the National Parks and Wildlife (Amendment) Act (the Amending Act) and included Part IVA, Relics. Section 33D provided as follows: 33D (1) Subject to this section, a relic that immediately before the commencement of this Act - (a) was not the property of the Crown; and (b) was not in the possession of any person, and any relic that is abandoned after that commencement by a person other than the Crown, shall be deemed to be, and always to have been, the property of the Crown. (2) For the purposes of subsection one of this section, a person shall not be deemed to have had possession of a relic that was not originally real property only by reason of the fact that it was in or on land owned or occupied by him. (3) Nothing in this section shall be construed as restricting the lawful use of land or as authorising the disturbance or excavation of any land. (4) No compensation shall be payable in respect of the vesting of a relic by this section. 14 The Director-General may upon such terms and conditions as the Director-General thinks fit issue a permit to disturb or excavate any land or cause any land to be disturbed or excavated, for the purpose of discovering a relic (ss 86 and 87 of the NPW Act). Sections 90 and 91 of the NPW Act relevantly provide: 90. Destruction etc of relics or Aboriginal places (1) A person who, without first obtaining the consent of the Director-General knowingly destroys, defaces or damages, or knowingly causes or permits the destruction or defacement of or damage to, a relic or Aboriginal place is guilty of an offence against this Act. Maximum penalty: 50 penalty units or imprisonment for 6 months or both (or 200 penalty units in the case of a corporation). (1A) Subsection (1) does not apply with respect to a relic that is dealt with in accordance with Aboriginal tradition pursuant to s 85A. (2) The Director-General may give consent for the purposes of subsection (1) subject to such conditions and restrictions as are specified therein. … 91. Notification of sites of relics A person who is aware of the location of a relic that is the property of the Crown or, not being the property of the Crown, is real property, and does not, in the prescribed manner, notify the Director-General thereof within a reasonable time after the person first becomes aware of that location is guilty of an offence against this Act unless the person believes on reasonable grounds that the Director-General is aware of the location of that relic. 15 The Director-General is the authority for the protection of relics and Aboriginal places and is responsible for the proper care, preservation and protection of any relic or Aboriginal place or any land reserved or dedicated under the NPW Act (s 85). Section 85A, which was introduced into the NPW Act by amendment in 1997, provides:

85A. Transfer of relics (1) The Director-General may, despite any other provision of this Act, dispose of relics that are the property of the Crown: (a) by returning the relics to an Aboriginal owner or Aboriginal owners entitled to, and willing to accept possession, custody or control of the relics in accordance with Aboriginal tradition, or (b) by otherwise dealing with the relics in accordance with any reasonable directions of an Aboriginal owner or Aboriginal owners referred to in paragraph (a), or (c) if there is or are no such Aboriginal owner or Aboriginal owners - by transferring the relics to a person, or a person of a class, prescribed by the regulations for safekeeping. (2) Nothing in this section is taken to limit the right of an Aboriginal owner or Aboriginal owners accepting possession, custody or control of any relic pursuant to this section to deal with the relic in accordance with Aboriginal tradition.

16 A condition of the development consent relating to stages two to six of the plaintiff's development required it to comply with Part 6 of the NPW Act. The plaintiff conducted investigations pursuant to s 87 permits and a firm of expert archaeological consultants, Navin Officer, engaged by the plaintiff, produced a Report. That Report (Ex. D) referred to the range of land uses of the area including the clearing of original native vegetation and development of agricultural fields; construction of a sequence of colliery rail infrastructures including a nineteenth century tramway and twentieth century rail sidings; establishment of coke works and the importation of fill. 17 The study conducted by Navin Officer included a programme of archaeological subsurface testing under the provisions of a Preliminary Research Permit. This involved the backhoe excavation of thirteen test pits, specialist analysis of stone artefacts recovered in the excavation and an assessment of the cultural heritage significance of the archaeological deposits encountered in the study area, including a summation of available information about stated Aboriginal cultural values of the place and site. 18 Navin Officer concluded that stone artefacts were the only type of Aboriginal artefacts able to be identified and that the site contained a "fairly rich collection" of artefacts exemplifying a range of manufacturing techniques. More than nine different rock types were found with silcrete being the most valued and intensively used rock type. Navin Officer expressed the view that this use of silcrete may reflect the travel required to obtain it from some 60 kilometres away. Navin Officer also expressed the view that the site is less than 4,000 years old and: The vertical and horizontal distribution of artefacts across the site appears to be highly disturbed and can best be related to the impacts of agricultural development and ploughing. It is unlikely that the site preserves information about either original patterns or timing of past human behaviours.

In addition to site disturbance processes, attritional processes have acted to diminish the information potential of the assemblage. In particular burning is identified as the main source of fragmentation. 19 The Report summarised the information on Aboriginal cultural significance that was made available by various representatives of the Aboriginal community. The Wodi Wodi Elders Corporation provided a submission that stated that overall it was "unlikely" that anything of real significance would be found within the development area because the traditional Aboriginal activity in the area "would have focused on the beach dunes and the point itself". 20 An unincorporated group known as the Sandon Point Aboriginal Tent Embassy indicated opposition to the proposed development on the basis of the cultural association of the Sandon Point headland and surrounding area with the cultural significance of the burial site located adjacent to McCauleys beach. Skeletal remains were found in the area of McCauleys Beach. With the involvement of and consultation with the Aboriginal community, the skeletal remains were removed from the land, studied and then buried on a site near the original area in which they were found. 21 The Wadi Wadi Coomaditchie Aboriginal Corporation, of which the defendant is the Chairman, had not provided any formal statement to Navin Officer by the time the Report was published in October 2001. However, during the field programme, representatives of that Corporation voiced the opinion that the recovered artefacts were evidence of undisturbed and possibly significant deposits. 22 The Navin Officer Report recommended to the plaintiff that it make application for a "Consent to Destroy" be submitted to the Director-General for all areas of stages two to six which would be the subject of ground surface disturbance and "likely to contain Aboriginal artefacts ('relics')". The Report also advised: … it is the policy of the NSW NPWS to take into account the views of representative Aboriginal organizations and individuals when assessing applications for a Consent to Destroy Aboriginal sites. Careful consideration should be given to the client's decision regarding which of the two available strategies are followed regarding the consent application: Either : continued consultation with all Aboriginal representative groups with the aim of arriving at a compromise position which would allow the submission of an application for a Consent to Destroy which is endorsed by majority or all Aboriginal groups;

or : proceed with an application for a Consent to Destroy in the context of some Aboriginal groups presenting opposition to the development. Any evaluation of the Aboriginal issues and the decision to grant or reject the application will rest formally with the Director General of the NSW NPWS. 23 The defendant relied upon a report dated August 2002 prepared by Dr Peter Hiscock, entitled "Appraisal of Archaeological Studies at Sandon Point, New South Wales". Dr Hiscock evaluated the investigations made by Navin Officer and expressed the opinion that their researches did not give adequate acknowledgement to the size and potential of the assemblage of artefacts. He also expressed the view that the archaeological investigations were not extensive or detailed enough to develop final statements of scientific significance. Dr Hiscock concluded that it remained "possible, even likely, that this site should be considered of national importance for questions of ancient technology and economy". 24 The plaintiff obtained consents from the Director-General pursuant to s 90 of the NPW Act on 30 January 2002. Consent Number 1288 in respect of the stage one development permitted the plaintiff to destroy relics referred to as "a subsurface artefact scatter" subject to terms and conditions. Special terms and conditions excluded human skeletal remains and required the establishment of a Voluntary Conservation Agreement for the long-term conservation and management of the cultural heritage values in the area. The special terms and conditions also required a community collection to take place with all Aboriginal groups to be invited to participate. The artefacts collected from that exercise were to be stored at a mutually agreed upon and accessible place in the local area until a Keeping Place was established. A further requirement was that all Aboriginal groups were to be invited to participate in the monitoring of ground surface breaking activity. 25 Consent Number 1289, also granted on 30 January 2002, in respect of stage two to six permitted the plaintiff to destroy relics in the "subsurface artefact scatter" in the properties in stages two to six. The same special terms and conditions applied to this consent with the additional requirement that the scope of works for the salvage component was to be carried out in accordance with the methodology of the Navin Officer Report. 26 There was a challenge to the granting of those consents in the Land and Environment Court. That application, brought by Roy Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy, was dismissed on 2 May 2002 after a short period of interlocutory relief. Works commenced in accordance with the salvage methodology and indigenous consultation processes referred to in the special conditions of the consents. That process included representatives of the Wadi Wadi Coomaditchie Aboriginal Corporation being present on site to attend what has been referred to in the evidence as the initial "scrape" of the ground and collection of relics. 27 The Wadi Wadi Coomaditchie Aboriginal Corporation commenced proceedings in the Land and Environment Court challenging the consents. The defendant subsequently replaced the Corporation as applicant, interlocutory relief was refused and on 19 July 2002 the Court ordered the defendant, as applicant in those proceedings, to pay $25,000 by way of security for costs. Those proceedings have been stayed until that obligation has been discharged: Carriage v Stockland (Constructors) Pty Ltd & Anor (No 2) [2002] NSWLEC 121 (unreported, Talbot J, 19/7/2002). 28 A further s 87 permit and s 90 consent were granted on 30 September 2002 in respect of ancillary works adjacent to the properties in stages two to six of the subdivision. The defendant has challenged the granting of that permit and consent in the Land and Environment Court by the filing of an application dated 4 November 2002. That application is pending in the Land and Environment Court. 29 There is at present stockpiling of soil on what is known as the AIR land, apparently within an area of Property Five and there is another stockpiling of soil in an area on Property Four. The defendant tendered photographs indicating the two stockpiles of soil which include artefacts (Ex. 2). The Land and Environment Court (Carriage v Stockland (Constructors) Pty Ltd and Ors [2002] NSWLEC 216 (unreported, Pain J, 20/11/2002)) granted interlocutory relief in respect of the AIR land. It is not clear when the final hearing of that matter will occur. 30 Other applications have been made by persons other than the defendant to the Federal Minister for the Environment for a declaration pursuant to s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) that the plaintiff's development site is an Aboriginal Place under imminent threat of destruction. The Federal Minister for the Environment, the Honourable Dr David Kemp, has decided not to make such a declaration. On 11 October 2002 the defendant sought a similar declaration under that Act and the Honourable Dr Kemp has decided not to make a declaration. That decision was notified to the plaintiff by letter dated 27 October 2002 received on 6 November 2002. 31 The plaintiff is currently marketing the lots in the subdivision for stages one to six on an "off the plan basis" and has entered into contracts to sell fourteen of those lots. The completion of the contracts is conditional upon registration of the Linen Plan for the subdivision.

32 Section 74 MA of the Act provides that a person "who is or claims to be entitled to an estate or interest in the land" described in the caveat may apply to this Court for its removal. There is authority for the proposition that because the plaintiff is the registered proprietor of all the subject properties, the defendant has the evidentiary onus of showing that the caveat should remain: Eng Mee Yong & Anor v Letchumanan s/o Velayuthan [1980] AC 331. However, the plaintiff has approached the matter on the basis that it has the onus of establishing that the caveat should be removed. 33 The question in this case is whether the defendant has a caveatable interest in the properties. A caveatable interest is one in which there is an interest in respect of which equity will give specific relief against the land itself: Composite Buyers Ltd v Soong and Anor (1995) 38 NSWLR 286 at 288. The "nature of the estate or interest in the land" claimed by the defendant in the caveat is "Aboriginal Traditional Owner" and "Custodial ownership and/or equitable interest in Aboriginal Objects on and beneath the surface of the land".

34 The defendant is Aboriginal and is the Chairperson of the Wadi Wadi Coomaditchie Aboriginal Corporation. He stated his belief that he is an Aboriginal Elder and a descendant of his great-great-grandfather, Mickey Johnson, referred to as "King Mick", and his great-great-grandmother, Rosie Russell, referred to as "Queen Rose". The defendant believes that he has responsibilities to the Aboriginal community generally and to the non-Aboriginal community members to "keep our culture alive". 35 When the defendant was a young boy his mother pointed out to him areas including those now under development on the plaintiff's land. His mother informed him that the site was "very important" for "women's business and men's business". His mother also informed him that it was a very important place for Aboriginal culture. It was said to be a place where stones were broken down and made sharp to cut meat and clean fish and abalone. He was also informed that Aborigines used to eat there and cut grass to make baskets and little net bags. The defendant said that he knew in his heart that it is a very sacred place for Aboriginal people. 36 Mr Oshlack submitted that the Court must be careful not to consider this matter as a Native Title claim and seemed to submit that the reference to the term "Aboriginal Traditional Owner" in the caveat was relevant to the terms of s 85A of the NPW Act and also to an argument that he put in respect of s 33D of the 1967 Act. The nature of the plaintiff's title in the subject properties was described by the High Court in Fejo and Anor v Northern Territory of Australia and Anor (1998) 195 CLR 96 at 126: An estate in fee simple is "for almost all practical purposes, the equivalent of full ownership of the land" and confers "the lawful right to exercise over, upon and in respect to, the land, every act of ownership which can enter into the imagination". It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title. 37 The caveat claims that the defendant's estate or interest in the land has been conferred on him by virtue of the statutes listed in Schedule 1 of the caveat under the heading "Nature of instrument". The alleged "facts" stated in the caveat by virtue of which the defendant claims this interest in the land are: (1) as owner of the relics on or below the surface of the land by reason of his status as a Traditional Aboriginal Owner and (2) as a person having an equitable interest in the Aboriginal objects wholly or in co-existence with the Crown. There is also reliance upon the "fact" that the defendant has brought proceedings in the Land and Environment Court to protect "Aboriginal Objects from destruction". 38 One of the statutes referred to in the caveat is the Real Property Act 1900 (NSW). Although there is no mention of the section upon which reliance is placed there is a reference to the case, "Williams vs Andersen". It became apparent during submissions that the intention was to refer to Wilson v Anderson (2002) 190 ALR 313. There was no reference to that decision during submissions and from the way Mr Oshlack argued the defendant's case, he specifically eschewed any suggestion that this was a case relevant to the Native Title Act 1993 (Cth) or the Native Title (New South Wales) Act 1994 (NSW). Wilson v Anderson involved a claim in respect of a perpetual lease under the Western Lands Act 1901 (NSW) in which the High Court decided that the grant of the lease extinguished any Native Title in relation to the land. 39 The defendant also relied upon ss 9 and 10 of the Racial Discrimination Act 1975 (Cth). No specific argument was addressed on these sections in respect of the defendant's alleged caveatable interest in the land. However it is noted that since the proclamation of that Act, native title rights are accorded the same protection by the law as other rights in relation to land. 40 The final statute relied upon in the caveat is the NPW Act in respect of which the defendant specified in the caveat that he was relying upon s. 87(a) of that Act to claim an equitable interest in the land. There is no s. 87(a) of that Act, however from the submissions put by Mr Oshlack, reliance was placed upon s 85A(1)(a) which refers to the Director-General's discretion to "return" relics to an Aboriginal owner. No other parts of the section were relied upon by the defendant. 41 The plaintiff claims that the relics are the property of the Crown by reason of s 33D of the 1967 Act. The plaintiff submitted that immediately before the commencement of that Act the relics were not the property of the Crown and were not in the possession of any person. In those circumstances the relics are deemed to be and always to have been the property of the Crown. 42 It was submitted that objects buried in the soil were at common law the property of the owner of the land. In Elwes v Briggs Gas Company (1886) 33 Ch D 562 Chitty J held, at 568, that a very ancient boat excavated from the earth on the plaintiff's property, that was subject to a lease, belonged to the plaintiff at the time of granting the lease. His Honour decided that it was immaterial whether the boat was to be regarded as a mineral, part of the soil or a chattel. 43 In what was referred to by Meagher JA in the Foreword as their "masterpiece of legal analysis", An Essay on Possession in the Common Law, (reprinted by Law Press in 1990), Sir Frederick Pollock and Robert Samuel Wright, wrote at page 41: The possession of land carries with it, in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing's existence. 44 In Ranger v Giffin (1968) 87 WN (Pt 1) (NSW) 531 McClemens J, at 539, referred to this statement from Pollock & Wright and to the fact that it had received approval in a number of cases. 45 In Waverley Borough Council v Fletcher (1995) QB 334 a brooch found by a member of the public using a metal detector on the Council's freehold land was held to be the property of the Council as it had a superior right to the brooch (at 349). Auld L.J., with whom Sir Thomas Bingham M.R. and Ward L.J. agreed, referred to the authorities in which reference had been made to the "ratio in Elwes case" and the "general principle enunciated by Chitty J, that lawful possession of land includes possession of everything in the land, naturally there or otherwise" (at 346-347). His Lordship reviewed the authorities and, at 346, restated two main principles established by those authorities with particular reference to "objects found on or in the land" as follows: (1) Where an article is found in or attached to the land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land has the better title. (2) Where a article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it. 46 In Flack v Chairperson, National Crime Authority & Anor (1997) 150 ALR 153 in which the applicant sought the return of money seized under warrant from premises of which she was the sole tenant, Hill J said at 160: It would, no doubt, be self evident that if a chattel became affixed to the realty, the ownership of the chattel (and possession of it) would follow the ownership (and possession) of the realty. So much was decided in Elwes v Brigg Gas Co (1886) 33 Ch D 562. … Chitty J held not only that the boat had become a fixture, having become permanently embedded by natural causes, but that the owner of the land had the better right. If the boat was a fixture, this followed axiomatically as his Lordship indicated. If it were correct to regard the boat still as a chattel, the possessor of the land was entitled to possession of the land and everything in it. 47 In Allred v Biegel 219 SW 2 d 665 (1949) the Kansas City Court of Appeals, Missouri, affirmed the judgment of Commissioner Sperry in which the Commissioner followed Elwes v Briggs Gas Company. 48 The plaintiff submitted that the common law position changed once the 1967 NPW Act was proclaimed and that because the land was granted in freehold to a predecessor in title to the plaintiff who owned the land immediately before that proclamation, any relics buried in the land became the property of the Crown and were deemed to have always been the property of the Crown. Paragraph 21 of the plaintiff's outline of submissions stated: "s 33D(2) provided that the objects are not in the possession of any person because they may be in the land owned by that person". 49 Section 33D(2) provided relevantly that the owner of the land "shall not be deemed to have had possession of a relic that was not originally real property only by reason of the fact that it was in or on the land" owned by that person (emphasis added). This section specifically excluded the presumption found in the common law unless there was something more then the presence of the object in or on the land. 50 There is a question as to whether the artefacts or relics were "originally real property" within the meaning of section 33D(2). It seems to me that the term "real property" is used in s. 33D(2) as a distinction between immovables and movables, between land and chattels: Professor Peter Butt: Land Law (4th ed Lawbook Co. Ltd, 2001) par [517]. A further distinction needs to be drawn between relics that were made from part of the land, such as the rocks in this case that were made into cutting implements, and a relic that was itself originally real property or part of the land, for example a cave painting. I am of the view that the latter type of relic is what is intended to be referred to as relics that were "originally real property" in s 33D(2). The intention seems to me to have been to refer to relics that were real property, not real property, such as part of the rock, subsequently used to create relics. 51 On this construction of the Amending Act and the evidence before me I am satisfied that more probably than not the relics on the plaintiff's land were not "originally real property" within the meaning of that term in s 33D(2). In those circumstances the plaintiff's predecessors in title of the properties at the time immediately before the commencement of the Amending Act shall not be deemed to have had the possession of the relics only by reason of the fact that they were in or on the land owned or occupied by the predecessors in title. There would have to be evidence of something more than that fact to allow those persons to be deemed to be in possession of the relics under s 33D(1)(b). There is some evidence in the Navin Officer Report as to the various land uses, however there is nothing of a specific nature that in my view would justify the deeming of possession. 52 Mr Oshlack submitted that the relics are not able to be deemed to be the property of the Crown under s 33D(1) unless they are abandoned and submitted further that there had been no abandonment of the relics in this case. The use of the term "a relic" at the commencement of s 33D(1) and the use of the term "any relic" after sub-paragraphs (a) and (b) of s 33D(1) lead me to conclude that the requirement for abandonment as a pre-requisite to deeming the relics to be the property of the Crown under s 33D(1) is only applicable if the relics were not deemed to have been the property of the Crown at the commencement of the Amending Act. Such relics that are abandoned after the commencement of the Amending Act are deemed to be the property of the Crown. 53 Mr Oshlack put the same submission in respect of s 83 of the NPW Act. I am also of he view that the abandonment in that section is only a pre-requisite in relation to a relic that has not already been deemed to be the property of the Crown. If it were otherwise one would have expected to see that abandonment provision as part of sub-paragraph (a) in respect of relics already deemed under the provisions of the Amending Act to have been the property of the Crown. 54 I am satisfied that immediately before the commencement of the Amending Act in 1970 the plaintiff's land was freehold land owned by persons other than the Crown and thus the relics on that land were not at that time the property of the Crown. I am also satisfied that by reason of s. 33D(2) and the extent of the evidence before me, the relics were not in the possession of any person. In those circumstances the relics on the plaintiff's land are deemed as at that time, 1970, to have been, and always to have been the property of the Crown. 55 "Aboriginal owner" is defined in the NPW Act as having "the same meaning as in the Aboriginal Land Rights Act 1983". Amendments to the Aboriginal Land Rights Act 1983 (NSW) were made by the Aboriginal Land Rights Amendment Act 2001, No 118, assented to on 19 December 2001 and proclaimed on 25 October 2002. The term "Aboriginal owners" is defined as "Aboriginal persons whose names are entered on the Register of Aboriginal Owners because of the persons' cultural association with particular land" (s. 4(1)). 56 The Registrar appointed under that Aboriginal Land Rights Act 1983 (NSW) is obliged to establish and keep a Register of Aboriginal Owners (the Register) (s. 170). The name of an Aboriginal person must not be entered in the Register unless the Aboriginal person (a) is directly descended from the original Aboriginal inhabitants of the cultural area in which the land is situated, (b) has a cultural association with the land that derives from the traditions, observances, customs, beliefs or history of the original Aboriginal inhabitants of the land and (c) has consented to the entry of the person's name in the Register (s. 171(2)). 57 The Registrar is to use his/her best endeavours to enter in the Register the name of every Aboriginal person who has a cultural association with land in New South Wales, the location of the land and the nature of the cultural association. (s.171). Any Aboriginal person may make a written request to the Registrar to enter the name of an Aboriginal person in the Register, with the written consent of the Aboriginal person if that person is other than the person making the written request. Such request must specify the land with which it is claimed the Aboriginal person has a cultural association and the cultural area in which the land is situated (s.172). 58 The Registrar may refer a request for entry in and/or a request for omission from the Register and any other question arising in relation to the keeping of the Register by the Registrar to the Land and Environment Court. After the Chief Judge of the Land and Environment Court determines whether the Court should deal with the request or question, the Court may hear and determine the request or question or refer the request or question back to the Registrar with such directions or recommendations as the Court considers appropriate (s.175). 59 An Aboriginal person or group of Aboriginal persons who consider their names have been wrongly entered or omitted from the Register may request the Registrar to rectify the Register. If the Registrar refuses the request, there is a right of a appeal to the Land and Environment Court (s.174). 60 These provisions create a regime for the proper administrative and/or judicial consideration of requests to be registered as an Aboriginal Owner or Owners. Questions that will arise for consideration in that process include (1) whether the area is a cultural area; (2) the identification of the original Aboriginal inhabitants of the area; (3) whether the applicant for registration is a direct descendant of the original inhabitants of the cultural area; (4) the nature of the traditions, observances, customs, beliefs or history of the original Aboriginal inhabitant; (5) whether the applicant for registration has a cultural association with the land; and (6) whether that cultural association derives from the traditions, observances, customs, belief or history of the original Aboriginal inhabitants of the land. 61 The process of registration is a very important one not the least because the Director General has a discretion under s 85A(1)(a) of the NPW Act to transfer ownership of a relic to an Aboriginal Owner or Owners. The exercise of that discretion appears to be limited in at least two ways: (1) the person or class of person to whom the relics may be transferred or 'returned' is limited to Aboriginal owners; and (2) those persons must be entitled to and willing to accept possession, custody and control of the relics in accordance with "Aboriginal tradition" (s. 85A(1)(a)). Mr Oshlack conceded that the defendant is not registered as an Aboriginal Owner in relation to any lands at Sandon Point.

62 In Williams v Director General of the National Parks and Wildlife Service & Ors [2002] NSWCA 176, (unreported, 20/6/2002, Sheller JA, Giles JA) the Court expressed the view, at [21], that the "effect of s 83 must be taken to have been significantly modified" by s 85A which enables the Director General to return relics to Aboriginal Owners. The Court also referred, at [23], to the argument put by Mr Oshlack, who was also granted leave to appear in that case, that s 83 may involve a contravention of the Racial Discrimination Act 1975(Cth) to the extent that it purports to vest in the Crown the property in relics without providing for any compensation in respect of that vesting. 63 Although not articulated in this way I will assume that the defendant would wish to put the same submission in this case. It seems to me that the present defendant has two problems in respect of these arguments. Firstly, the relics in the plaintiff's land were deemed to be the property of the Crown as at 1970, the date of the proclamation of the Amending Act, well before the introduction of the Racial Discrimination Act 1975. Secondly, even if that is not correct, the fact that the Director General has a discretion to "return" the relics to an Aboriginal Owner does not mean that the defendant has an equitable interest in the plaintiff's land. The defendant is not an Aboriginal Owner under the NPW Act, notwithstanding the general evidence he gave in respect of an area near to and including the plaintiff's land. The defendant has based the claim in the caveat on the statutory regime referred to under the heading "nature of instrument" and, in submissions, specifically under s. 85A(1)(a) of the NPW Act. The statutory regime provides for the recognition of an Aboriginal Owner and the defendant is not so recognised under that statutory regime. 64 The fact that the plaintiff has commenced proceedings in the Land and Environment Court in relation to the granting of the consents by the Director-General and has achieved some measure of interlocutory relief is not a fact, as claimed in the caveat, upon which a caveatable interest in the plaintiff's land is established.

65 I agree with the plaintiff's submissions that the relics on the plaintiff's properties are, and always have been, the property of the Crown. The Federal Minister for the Environment has refused to make any declaration in respect of the land and the Crown, through the Director General, has permitted the plaintiff to destroy the relics referred to in the Consents. The defendant is not registered as an Aboriginal Owner and in my view the defendant does not have a caveatable interest in the land. 66 I make the order in paragraph 1 of the Summons filed on 14 November 2002. Should the parties be unable to agree on a costs order I will hear argument at 9.30 on 13 December 2002 when the matter is listed for further directions. *******************

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