Worimi Local Aboriginal Land Council v Attorney-General of New South Wales

REASONS FOR JUDGMENT 1 Before the Court is an application brought by Worimi Local Aboriginal Land Council ('Worimi LALC') under s 61(1) of the Native Title Act 1993 (Cth) ('the NT Act'). Worimi LALC seek a determination that no native title exists in land being Lot 491 in Deposited Plan 727810 known as 74 Port Stephens Drive, Taylors Beach (otherwise known as Anna Bay) NSW 2316. Such land is located in the local government area of Port Stephens in the Parish of Tomaree County of Gloucester and comprises the land contained in Folio Identifier 491/727810 ('the land'). 2 This application is made pursuant to s 86G(1) of the NT Act, which provides: Unopposed applications Federal Court may make order (1) If, at any stage of a proceeding in relation to an application under section 61, but after the end of 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. 3 The application has been heard simultaneously with proceedings NSD 1731 of 2010 which relates to an application by the same applicant, which sought a declaration that no native title exists in relation to land in the same vicinity as the land in these proceedings. The evidence in support of these proceedings is virtually identical as for proceedings NSD 1731 of 2010, save for the references to the particular piece of land. The same principles as referred to in the Court's judgment in proceedings NSD 1731 of 2010 in relation to non-claimant applications apply to these proceedings, and the Court considers it unnecessary to re-state them. Accordingly the Court, in these proceedings, will abbreviate its findings. 4 The land was granted to Worimi LALC pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW) ('the ALR Act') on 4 October 2002 following a claim made on 23 October 1995. The land was transferred to Worimi LALC on 4 February 2010. 5 Section 36(9) of the ALR Act provides: Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer. 6 Section 42(1) of the ALR Act provides: An Aboriginal Land Council must not 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). 7 Worimi LALC wishes to deal with the land, and accordingly this application is made to the Court. 8 After the application was filed on 8 December 2010, the National Native Title Tribunal ('the NNTT') gave notice under s 66(3) of the NT Act requiring interested parties to apply to the Court within the three month period specified by s 66(10)(c). The three month period commenced on 23 February 2011 and concluded on 24 May 2011. 9 By Notice of Intention to Become a Party to an Application filed on 21 February 2011, NTSCORP Limited gave notice that it wished to be joined as a party. On 14 June 2011 Deputy Registrar Kavallaris made an order joining NTSCORP as a party. No other party gave notice of intention to be joined as a party.