Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales

2. THE POSITION OF THE PARTIES TO THE APPLICATION 6 The second respondent, NTSCORP Limited (NTSCORP), does not oppose orders in, or consistent with, the terms sought by the Land Council. At the hearing, NTSCORP explained that it was not in a position to consent to the proposed orders only because there were no native title holders or possible native title holders from whom it could take instructions. 7 The first respondent, the Attorney General of New South Wales, is a party to the application in his capacity as the Minister responsible for the administration of the NTA (the State Minister) pursuant to s 84(4) of the NTA. The State Minister neither opposes nor consents to the application, but has filed submissions addressing the evidentiary requirements for non-claimant applications and the question of whether any native title rights in the land subject to the application have been extinguished. In this regard, the State Minister agrees with the applicant that native title rights in the land have been extinguished albeit on the basis of a different line of reasoning. Accordingly, the State Minister consents to the orders sought in the application. 8 As the State Minister points out, his views are relevant to determining the application. In particular, it has been held that the State Minister has a role in native title proceedings in the capacity of parens patriae "to look after the interests of the community generally": see by analogy Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; (2001) 115 FCR 109 (Munn) at [29] (Emmett J). 9 However, nine individuals who claimed to hold native title in the land were joined as respondents by orders made on 6 September 2018, namely, Jacqueline McDonald, Paul Buxton, Veronese Burgess, Carol Dawney, Shaun Davies, Carmel Davies, Harley Davies, Christine Dodds and Sandra King (together the native title respondents). In their notice of intention to become a party, each of the native title respondents indicated their intention to oppose the non-claimant application. However, Mr Behrendt's evidence establishes that, save for Christine Dodds from whom no further communication was received, all of these parties subsequently advised the applicant that they did not wish to make submissions in the proceedings and wanted to withdraw as a party on the basis that there be no order as to costs. Mr Behrendt also explained that the applicant had advised the native title respondents that it would consent to orders to that effect. In due course, Jacqueline McDonald, Paul Buxton, Veronese Burgess and Carol Dawney each filed and served a notice withdrawing as a party. While the remaining native title respondents did not file and serve notices withdrawing as a party, I am satisfied on the evidence of Mr Behrendt and the fact that none of these native title respondents filed written submissions in relation to the application or appeared at the hearing that they do not press any alleged native title interest in the land and do not oppose the orders sought. Nonetheless, the applicant, the State Minister and NTSCORP considered that the safest course was for the Court not to proceed under s 86G(1) of the NTA which enables the Court to make a determination without holding or completing a hearing where satisfied that the application is unopposed as defined in s 86G(2). I agree and the application proceeded accordingly. 10 Finally, for convenience, I have referred to the applicant, the State Minister and NTSCORP together as "the parties" throughout these reasons given that there were no other parties who ultimately took any active part in the proceeding.

3. EVIDENCE 11 The Land Council relied upon the affidavit of Leweena Dale Williams sworn on 31 August 2018 (Williams). Ms Williams is the Chief Executive Officer of the Land Council and a descendant of the Goodjinburra People whose traditional lands and waters include the application area. The Land Council also relied upon the affidavits of Jason Augustus Behrendt, solicitor, sworn on 4 and 6 June 2019. I note that the second affidavit of Mr Behrendt simply corrected a paragraph in the earlier affidavit. 12 In addition the applicants tendered a bundle of documents including relevant tenure information. Finally, following the hearing and pursuant to leave granted at the hearing, the applicant filed and served a further affidavit of Mr Behrendt sworn on 14 June 2019 (the third Behrendt affidavit) addressing concerns as to whether each of the requirements in s 66 of the NTA had been complied with.

4.1 Jurisdiction and standing 13 The Court has jurisdiction to hear and determine the application under s 81 of the NTA. The Land Council, as the holder of an estate in fee simple over the land, has standing to bring the application under s 61(1) of the NTA because it is the holder of a non-native title interest in relation to the whole of the area in respect of which the determination is sought: see e.g. Deerubbin Local Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 (Deerubbin).

4.2 Prescribed conditions for making a determination that no native title exists 14 The conditions for making an approved determination that no native title exists in the application area were relevantly explained by Jagot J in Mudgee Local Aboriginal Land Council v Attorney-General of NSW [2013] FCA 668 (Mudgee) at [8], namely: (1) the application has been advertised in accordance with s 66 of the NTA; (2) the application area is not covered by an application for a determination that native title does exist; (3) the prescribed notification period under s 66(10)(c) has come to an end; and (4) an order in, or consistent with, the terms sought by the applicant is within the Court's power. See also e.g. Deerubbin at [52] (Griffiths J). 15 As to the first three requirements, the affidavit evidence of Ms Williams sworn on 31 August 2018 and the third Behrendt affidavit establish that: (1) on 1 February 2018, the National Native Title Tribunal (NNTT) Registrar gave notice to all persons as required by s 66(3)(a), relevantly, NTSCORP, the Commonwealth Minister, the Tweed Shire Council, and other persons whose interests may be affected by a determination; (2) on 7 February 2018, the NNTT published a notice of a non-claimant application for determination of native title in NSW in accordance with s 66 of the NTA in the Tweed Daily News and Koori Mail in compliance with s 66(3)(d) and reg 6(1) of the Native Title (Notices) Determination 2011 (No 1); (3) notice was also given to the Federal Court and the relevant State Minister in accordance with s 66(3)(b) and (c); (4) the notice in each case specified the notification day for the application as 21 February 2018 in accordance with s 66(8)-(9); and (5) on 29 May 2018, the NNTT wrote to the applicant's solicitors advising that the notification period closed on 21 May 2018 and that there were no native title claims on the register kept by the NNTT that related to the land (Williams at [17]). 16 As to the fourth requirement set out above, s 13(1) of the NTA permits an application to be made to the Court for an approved determination of native title in relation to an area for which there is no approved determination of native title then in existence (see also s 68, NTA). Furthermore, the Court has power to make a determination that native title does not exist: see e.g. CG v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466. 17 Finally, the operation and effect of the provisions of the ALR Act to which I earlier referred make it clear that the issue sought to be raised by this application is not a moot one and must be determined by this Court: see also by analogy e.g. Lightning Ridge at [25] (Perram J). As Jagot J observed in Jerrinja Local Aboriginal Land Council v Attorney General of the State of NSW [2013] FCA 562 at [2], the interactions between the ALR Act and the NT Act mean that land councils have no option but to seek an approved determination that there is no native title.

4.3 Has the Land Council established that no native title exists?

4.3.1 Relevant principles 18 The remaining question is, therefore, whether I am satisfied the evidence establishes on the balance of probabilities that no native title exists in the land. The onus of establishing that no native title exists lies upon the applicant: Deerubbin at [49] (Griffiths J). 19 In addressing this question, the Court must bear in mind that a determination that no native title exists has force and effect as against the whole world and, by virtue of s 61(1) of the NTA, may be varied relevantly only upon application by the Commonwealth, relevant State Minister, or the Native Title Registrar, upon the limited grounds prescribed by s 13(5) of the NTA. Thus, as Collier J explained in Anderson on behalf of the Wulli Wulli People v State of Queensland (No 3) [2015] FCA 821 at [153] in the context of a consent determination:  The Court must exercise caution where any declaratory order involving property rights is sought.  Orders that have particular public interest elements require closer examination by the Court than orders which operate solely inter partes. A determination of native title operates against the entire world and has public interest elements. … See also e.g. Munn at [22] (Emmett J). 20 As Griffiths J explained in Deerubbin at [48], there are two bases upon which the Court may be satisfied that native title does not exist in relation to land the subject of a non-claimant application, namely: (a) native title does not presently exist because it is not claimed by or cannot be proved by a native title claimant (eg Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 per Perram J); (b) native title has been extinguished by prior acts of the Crown (eg Gandangara Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 646 per Griffiths J; Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 per Perram J at [44]). 21 In the present case, only the second basis is relied upon. 22 The principles by which it is determined whether native title is extinguished in whole are conveniently summarised in the Attorney-General's submissions as follows: 19. At common law, native title will be extinguished completely by the valid grant of an interest conferring exclusive possession of the land, such as a grant of fee simple: see, e.g. Western Australia v Ward (2002) 213 CLR 1 (Ward) at [249]. It will be partially extinguished by the valid grant of a lesser interest, to the extent of inconsistency of that interest: see, e.g. Ward at [78], [192]-[194]. 20. In addition, under the NTA, native title is extinguished by an act that is a "previous exclusive possession act" (PEPA) under Division 2B of Part 2. An act will be a PEPA if it is (1) valid, (2) took place before 23 December 1996, (3) consisted of the grant or vesting of one of the interests specified in s 23B(2)(c) - which includes the grant of a freehold estate, and (4) does not attract one of the exceptions in sub-paragraphs (9)-(10) (s 23B). One such exception (in s 23B(9C)) is that an act will not be a PEPA if it is the grant or vesting of an interest in relation to waters or land in the Crown or a statutory authority unless, relevantly, (a) "apart from this Act, the grant or vesting extinguishes native title in relation to the land or water". A PEPA done by the Commonwealth or NSW will extinguish native title (NTA, s 23C, 23E; Native Title (New South Wales) Act 1994 (NSW), s 20). The NTA also validates certain invalid acts that took place before 1 July 1993 as "past acts" (see NTA, s 228).

4.3.2 The alleged extinguishing act and statutory provisions pursuant to which it took place 23 In the present case, the alleged extinguishing act was the appropriation of the land in 1988 under s 42 of the Public Works Act for the purposes of the Tourism Commission Act 1984 (NSW) which vested the land in the Tourism Commission of New South Wales (the Tourism Commission). Section 42 appears in Division 1 of Part V of the Public Works Act (Division 1) which comprises ss 42-46 inclusive. 24 The terms of the Gazette Notice (the Appropriation Notice) published in the New South Wales Government Gazette No 142 on 9 September 1988 appropriating then Lot 490 were as follows: PUBLIC WORKS ACT 1912 - TOURISM COMMISSION ACT 1984 NOTIFICATION OF APPROPRIATION OF LAND AT KINGSCLIFF IN THE SHIRE OF TWEED IT is hereby notified and declared by His Excellency the Governor, acting with the advice of the Executive Council, that in pursuance of the Tourism Commission Act 1984, the land described in the Schedule hereunder in respect of so much of the said land as is Crown land is hereby appropriated under Division 1, Part V, of the Public Works Act 1912, for the purposes of the Kingscliff Resort Tourist Complex, and that all the said land is hereby vested in the Tourism Commission of New South Wales. Dated at Sydney, this 31st day of August, 1988. J. A. ROWLAND, Governor By His Excellency's Command, G. B. WEST, Chief Secretary and Minister for Tourism ________ SCHEDULE All that piece or parcel of land situate in the Shire of Tweed, Parish of Cudgen and County of Rous, being lot 490, Deposited Plan 47021, having an area of 24.45 hectares. 25 Section 42 of the Public Works Act provided relevantly that: For the purpose of carrying out any authorised work, if the Governor directs that any land required for such work shall be taken under this Division of this Act, he may by notification to be published in the Gazette and in one or more newspapers published or circulated in the police district wherein is situated the land the subject of such notification declare that the land described in such notification has been appropriated (if Crown land) or resumed (if private property) for the public purpose therein expressed. … (emphasis added) 26 Section 43(1) of the Public Works Act in turn provided that, upon publishing the notification in the Gazette, the lands described in the notification "shall forthwith be vested in the Constructing Authority on behalf of His Majesty for the purpose of this Act for an estate in fee-simple in possession, freed and discharged from all trusts, obligations, estates, interests, contracts, charges, rates, rights-of-way, or other easements … whatsoever …". 27 In the case of Crown land the subject of an appropriation under s 42, s 44 provided that the effect of publishing the notification: … shall be to withdraw the said land (to the extent taken) from any lease or licence, or promise thereof, and to cancel, to the like extent, any dedication or reservation of the said land made under the authority of any such Act, or to divest the estate of such corporation or person, and to vest the said land to the extent aforesaid in the Constructing Authority for the purposes mentioned and for the estate limited in the last preceding section. 28 On the other hand, in the case of land resumed under s 42, s 45 provided relevantly that: (1) The estate and interest of every person entitled to lands resumed under this division of this Act or any portion thereof and whether to the legal or equitable estate therein shall by virtue of this Act be deemed to have been as fully and effectually conveyed to the Constructing Authority as if the same had been conveyed by the persons legally or equitably entitled thereto by means of the most perfect assurances in the law. (2) Every such estate and interest shall, upon the publication of such notification as aforesaid be taken to have been converted into a claim for compensation in pursuance of the provisions hereinafter contained. (3) Every person shall upon asserting his claim as hereinafter provided and making out his title in respect of any portion of the said resumed lands be entitled to compensation on account of such resumption in manner hereinafter provided. (emphasis added)

4.3.3 Any native title was extinguished in whole on publication of the appropriation notice under the Public Works Act 29 It was not in issue that the Tourism Commission was a "Constructing Authority" for the purposes of s 43 of the Public Works Act: s 17(2), Tourism Commission Act 1984 (NSW). It follows that the alleged extinguishing act concerned the vesting of an estate in fee simple in a State statutory authority. Accordingly, by virtue of s 23B(2) and (9C) of the NTA and s 20(1) of the Native Title (New South Wales) Act 1994 (NSW), that act will not be a PEPA and extinguish native title unless "apart from" the NTA (that is, at common law), the grant or vesting of the fee simple estate extinguished native title in relation to the land. This question in turn depends upon whether Division 1 is inconsistent with s 10(1) of the Racial Discrimination Act 1975 (Cth) (RDA) for the purposes of s 109 of the Constitution, insofar as it purports to extinguish native title. 30 Bearing in mind that native title can be held only by Aboriginal and Torres Strait Islander people, at the risk of oversimplification Division 1 will be inconsistent with s 10(1) of the RDA if: (1) Division 1 has a discriminatory operation or effect such that native title holders do not enjoy, on an equal footing with non-native title holders, the human rights to own property alone and in association with others and to inherit; and (2) s 10(1) of the RDA is unable to operate so as to enhance or "top up" the rights of the native title holders to the level necessary to eliminate the inequality which would otherwise exist between the enjoyment of those rights by the native title holders on the one hand, and the enjoyment of those rights by non-native title holders on the other hand. See further Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [106]-[108] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 31 In the present case, I agree with the parties that the clear and plain intention of the Parliament in enacting Division 1 was that, upon publication of a notification in the Gazette in accordance with s 42, the land referred to in the notification would be vested in the Constructing Authority in fee simple unfettered by any other right or interest, including any native title rights or interests. The applicant argues that the vesting of the fee simple estate under Division 1 was valid on the basis that, in common with the holders of non-native title rights and interests, s 45 of the Public Works Act applied so as to convert the native title rights and interests into a claim for compensation under that Act. NTSCORP agreed with the applicant's position. 32 The State also agreed that the vesting of the fee simple estate in the then Tourism Commission was valid and extinguished any native title rights and interests in the land. However, on the basis that the land was Crown land at the time of the appropriation notice and was therefore "appropriated" and not "resumed" under s 42 of the Public Works Act, the State submitted that, in common with the holders of non-native title rights and interests, the holders of native title rights and interests were not entitled to compensation: see s 44, Public Works Act. 33 As I earlier indicated, and as the parties were agreed, it is unnecessary to resolve this difference between them. In those circumstances, and given that the question of whether there was any entitlement to compensation was not directly in issue in this proceeding, in my view it would also be undesirable to reach a final view on that issue. The short point is that on either view, there was no discrimination on the ground of race against the holders of native title and the vesting of the estate in fee simple in the Tourism Commission under s 43 of the Public Works Act was valid and extinguished any native title in the land in whole at common law, as confirmed by s 20(1) of the Native Title (New South Wales) Act 1994 (NSW) read in conjunction with s 23B(2) and (9C) of the NTA.

5. CONCLUSION 34 For these reasons, it is appropriate to make a determination under s 61(1) of the NTA that no native title exists in the application area. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

SCHEDULE OF PARTIES NSD 2201 of 2017 Respondents Fourth Respondent HARLEY LUKE DAVIES Fifth Respondent CARMEL AMELIA DAVIES Seventh Respondent SANDRA LORREL BUNGAREE KING Eighth Respondent CHRISTINE GRACE DODDS