Eden Local Aboriginal Land Council v NTSCORP Limited

[2010] FCA 746

FEDERAL COURT OF AUSTRALIA

Eden Local Aboriginal Land Council v NTSCORP Limited [2010] FCA 746  

Citation:		Eden Local Aboriginal Land Council v NTSCORP Limited [2010] FCA 746
Parties:		EDEN LOCAL ABORIGINAL LAND COUNCIL v NTSCORP LIMITED and NEW SOUTH WALES MINISTER FOR LANDS AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)
File number(s):		NSD 1200 of 2009
Judge:		JACOBSON J
Date of judgment:		15 July 2010
Catchwords:		NATIVE TITLE – non-claimant application – application unopposed – no native title exists in relation to the land
Legislation:		Native Title Act 1993 (Cth) s 61 Aboriginal Land Rights Act 1983 (NSW) ss 42, 42E, 42G
Cases cited:		Eden Local Aboriginal Land Council v NTSCORP Limited [2010] FCA 745 referred to
Date of hearing:	15 July 2010
Date of last submissions:	15 July 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	8
Solicitor for the Applicant:	Ms D Fitzclarence of Peter Tierney Solicitors
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1200 of 2009

BETWEEN:

EDEN LOCAL ABORIGINAL LAND COUNCIL
Applicant

AND:

NTSCORP LIMITED
First Respondent

NEW SOUTH WALES MINISTER FOR LANDS AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	15 JULY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Native title does not exist in relation to the land comprised in NSW Department of Lands Certificate of Title folio identifier 207 of Deposited Plan 728018.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1200 of 2009

BETWEEN:

EDEN LOCAL ABORIGINAL LAND COUNCIL
Applicant

AND:

NTSCORP LIMITED
First Respondent

NEW SOUTH WALES MINISTER FOR LANDS AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)
Second Respondent

JUDGE:	JACOBSON J
DATE:	15 JULY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application made pursuant to s 61 of the Native Title Act 1993 (Cth) (“Native Title Act”) for a determination that no native title exists in relation to land comprised in New South Wales Department of Lands Certificate of Title folio identifier 207 of Deposited Plan 728018 (“the Land”). 

2. The Land is in the local government area of the Bega Valley Shire, New South Wales.  There has been no determination to date that native title exists in relation to the Land. 

3. The application is supported by an affidavit of Mr Oswald Cruse who is the Chairperson of the Eden Local Aboriginal Land Council (“Eden LALC”).

4. This application is, subject to one exception, identical in all respects to the matter number NSD 1199 of 2009 which I have also heard today (see Eden Local Aboriginal Land Council v NTSCORP Limited [2010] FCA 745).

5. The only difference between the present application and the earlier one is that if the application is approved, the Eden LALC proposes to subdivide and possibly sell all or part of the Land.  The Eden LALC has been negotiating with the Bega Valley Shire Council and may enter into a partnership with Bega Valley Shire Council for the subdivision of the Land. 

6. Although the negotiations have not culminated in a proposal in final form, that does not seem to me to be an impediment to the making of the orders in this case That is because the application is governed by the provisions of ss 42 and 42E of the Aboriginal Land Rights Act 1983 (NSW) (“Aboriginal Land Rights Act”). The effect of those provisions is that the Eden LALC will not be able to deal with the Land, except in accordance with an approval of the New South Wales Aboriginal Land Council (“NSW ALC”) under section 42G of the Aboriginal Land Rights Act.

7. Accordingly, the making of the order in this application, under s 61 of the Native Title Act, will satisfy the prerequisite for a determination by the NSW ALC, and it would appear that this will be sufficient for the NSW ALC to deal with the proposed land use once the final form of the proposal for subdivision and sale is finalised. 

8. For these reasons, I propose to make an order in accordance with the proposed short minutes of order which have been signed by the solicitors for NTSCORP Limited and the Minister for Lands, as well as on behalf of Eden LALC. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:       22 July 2010