Cruse v New South Wales Native Title Services Ltd

[2006] FCA 1124

FEDERAL COURT OF AUSTRALIA

Cruse v New South Wales Native Title Services Ltd [2006] FCA 1124

NATIVE TITLE – non-claimant application – unopposed – no native title exists in relation to the land

BENJAMIN JOHN CRUSE (ON BEHALF OF THE EDEN LOCAL ABORIGINAL LAND COUNCIL) v NEW SOUTH WALES NATIVE TITLE SERVICES LTD
NSD 1766 OF 2005

JACOBSON J
23 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1766 OF 2005

BETWEEN:	BENJAMIN JOHN CRUSE (ON BEHALF OF THE EDEN LOCAL ABORIGINAL LAND COUNCIL) Applicant
AND:	NEW SOUTH WALES NATIVE TITLE SERVICES LTD Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	23 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to Section 86 of the Native Title Act 1993, the Court determines no native title exists in relation to the land described as:

1.1Lot 31 of Section 20 in Deposited Plan 758379;

1.2Lot 32 of Section 20 in Deposited Plan 758379;

1.3Lot 33 of Section 20 in Deposited Plan 758379;

1.4Proposed Lots 1 to 7, Part Allotment 3 in Section 33, Town of Eden (Maling and Curalo Streets).

2.Each party pay their own costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1766 OF 2005

BETWEEN:	BENJAMIN JOHN CRUSE (ON BEHALF OF THE EDEN LOCAL ABORIGINAL LAND COUNCIL) Applicant
AND:	NEW SOUTH WALES NATIVE TITLE SERVICES LTD Respondent

JUDGE:	JACOBSON J
DATE:	23 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for a determination of native title under s 61 of the Native Title Act 1993 (Cth) (the Act). The land is subject to restrictions on dealings under ss 40 and 40AA of the Aboriginal Land Rights Act 1983 (NSW).

2. The applicant seeks a determination that no native title exists in relation to the land.  Section 225 of the Act provides that a determination of native title is a determination whether or not native title exists in relation to a particular area.

3. The application concerns the land in two separate parcels at Eden.  Parcel 1 comprises the land in lots 31, 32 and 33 of Section 20 in DP 758379.  Parcel 2 comprises proposed lots 1 to 7, Part Allotment 3 in Section 33, Town of Eden (Maling & Curalo Streets).

4. The applicant is the registered proprietor of the three lots comprised in parcel 1.  The applicant is not the registered proprietor of the land in parcel 2 but holds an equitable interest in the land because the Minister for Land & Water Conservation has agreed to grant the land to the applicant.  Legal title is to be transferred upon completion of a survey.

5. A native title determination may be a claimant application or a non-claimant application; see s 253 of the Act.

6. The requisite notices of the application have been given in accordance with s 66 of the Act.  The only party which has sought to be joined is New South Wales Native Title Services Limited.  No one else has sought to appear or notified a claimed interest.

7. The period specified in s 66 of the Act has expired and, after the end of that period, New South Wales Native Title Services Limited signed short minutes of order consenting to the determination sought by the applicant. The application is therefore unopposed; see ss 86G(1)(a) and 86G(2) of the Act.

8. I am satisfied that the Court has power to make the proposed consent orders; see ss 81 and 87 of the Act.  I am also satisfied in accordance with s 86G of the Act that it is appropriate to make the orders without holding a hearing.

9. It is appropriate to make the orders because, as I have said, the only person who has come forward in response to the s 66 notices is New South Wales Native Title Services Limited, which consents to the orders.

10. A further reason why it is appropriate to make the orders is that the applicant brings the application on behalf of the local Land Council.  Moreover, if the application is granted, both parcels of land are proposed to be used for purposes consistent with the interests of the members of that Council and the local indigenous community.

11. This is not a case in which any previous native title has been extinguished by previous exclusive possession acts within s 23B or, otherwise within Division 2B of Part 2.  However, the matters to which I have referred are sufficient to satisfy me that I should make the consent orders in accordance with s 86G(1) of the Act.

12. I note that a similar approach was taken by Bennett J in Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2005] FCA 1712.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice JACOBSON J.

Associate:

Dated:       23 August 2006