Hillig as Administrator of Worimi Local Aboriginal Land Council v NSW Native Title Services Ltd

[2006] FCA 1184

FEDERAL COURT OF AUSTRALIA

Hillig as Administrator of Worimi Local Aboriginal Land Council v NSW Native Title Services Ltd [2006] FCA 1184

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

Native Title Act 1993 (Cth) ss 61, 86G

Deniliquin Local Aboriginal Land Council [2001] FCA 609 cited
Kennedy v Queensland (2002) 190 ALR 707 cited
Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1712 cited
Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1713 cited

PETER HILLIG IN HIS CAPACITY AS ADMINISTRATOR OF THE WORIMI LOCAL ABORIGINAL LAND COUNCIL v NSW NATIVE TITLE SERVICES LTD

NSD 34 OF 2006

BENNETT J
1 SEPTEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 34 OF 2006

BETWEEN:	PETER HILLIG IN HIS CAPACITY AS ADMINISTRATOR OF THE WORIMI LOCAL ABORIGINAL LAND COUNCIL Applicant
AND:	NSW NATIVE TITLE SERVICES LTD Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	1 SEPTEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.No native title exists in relation to the property referred to as NSW Department of Lands Certificate of Title folio identifier 473 of Deposited Plan 728126 and located in the Local Government Area of Port Stephens, Parish of Tomaree, County of Gloucester, State of New South Wales.  

2.Order 1 be entered forthwith. 

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 34 OF 2006

BETWEEN:	PETER HILLIG IN HIS CAPACITY AS ADMINISTRATOR OF THE WORIMI LOCAL ABORIGINAL LAND COUNCIL Applicant
AND:	NSW NATIVE TITLE SERVICES LTD Respondent

JUDGE:	BENNETT J
DATE:	1 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant (Mr Hillig) seeks an order that no native title exists in relation to the land comprised in NSW Department of Lands Certificate of Title folio identifier 473 of Deposited Plan 728126 and located in the Local Government Area of Port Stephens, Parish of Tomaree, County of Gloucester, New South Wales (‘the land’).  

2. The land was transferred to the Worimi Local Aboriginal Land Council (‘the Land Council’) pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW) (‘the Land Rights Act’) on 23 September 2003. By s 36(9) of the Land Rights Act, the transfer was subject to any native title rights and interests existing in relation to the land immediately before transfer.

3. The members of the Land Council have passed a resolution to sell the land and a contract for its sale has been signed and awaits completion.  However, the land cannot be sold by the Land Council unless it is the subject of ‘an approved determination of native title’ (s 40 and s 40AA of the Land Rights Act). An application may be made to this Court under Part 3 of the Native Title Act 1993 (Cth) (‘the Act’) for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Act). A determination made on such an application will constitute an ‘approved determination of native title’ (s 13(3)(a)) unless varied or revoked (s 13(4)). 

4. Mr Hillig, in his capacity as Administrator of the Land Council, brings an application pursuant to s 61(1) in Part 3 of the Act seeking a determination that native title does not exist in relation to the land. His application is a ‘non-claimant application’ within the meaning of s 253 of the Act. Mr Hillig submits that he is entitled to bring the non-claimant application because the Land Council, as registered proprietor of the land, holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought (s 61(1) of the Act).

5. Mr Hillig also submits that the requirements of the Act for notification of the non-claimant application have been met (s 66 of the Act). Section 66(3) of the Act requires the Native Title Registrar (‘the Registrar’) to give notice of details of a non-claimant application to certain persons or bodies and to notify the public. Section 66(2) and s 66(2A) of the Act require the Registrar to provide the relevant State Minister and representative bodies a copy of the application and certain other documents.

6. The evidence establishes that notice of the non-claimant application was advertised by the Registrar in three newspapers in February 2006. The period of notification under the notice expired on 31 May 2006. To date, no native title claimant has sought to appear or has otherwise notified the Court of any interest in the non-claimant application. A letter on the Court file from the Registrar describes the measures undertaken to comply with s 66(3) and I am satisfied that the notice required by s 66(3) of the Act has been given. I am also satisfied that s 66(2) and s 66(2A) of the Act have been complied with.

7. The NSW Minister for Land and Water Conservation, in his capacity as the State Minister pursuant to the Act, informed the Court on 17 January 2006 that he did not wish to be a party to the non-claimant application. NSW Native Title Services (‘Native Title Services’), the body funded under s 203FE of the Act to perform the functions of a representative body in New South Wales, notified the Court of its intention to become a party to the application on 5 April 2006 and was joined as a respondent on 15 June 2006.

8. Mr Hillig submits that the application is unopposed and that the Court may make the order sought without holding a hearing. He relies on s 86G of the Act, which provides:

   ‘(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.

   …

   (2)For the purpose of this section, an application is unopposed if the only party is the applicant or if each other party notifies the Federal Court in writing that he or she does not oppose an order in, or consistent with, the terms sought by the applicant.’  (original emphasis)

9. No person other than Mr Hillig and Native Title Services is a party to the non-claimant application (s 84(3) of the Act). Native Title Services has notified the Court in writing that it does not oppose an order being made in the terms sought by Mr Hillig and has signed the proposed Short Minutes of Order. It is clear the application is unopposed within the meaning of s 86G(1)(a) of the Act.

10. I am also satisfied that the Court has power to make an order in the terms sought by Mr Hillig (s 86G(1)(b) of the Act). Mr Hillig is the holder of a non-native title interest in the land and is entitled to bring the non-claimant application under s 61(1) of the Act. The Court has jurisdiction to make a determination under s 61(1) of the Act that native title does not exist in relation to the land provided no prior approved determination of native title has been made (s 81, s 13(1)(a) and s 225 of the Act). Searches conducted by the National Native Title Tribunal on 10 October 2005 and 1 June 2006 respectively did not find any approved determination of native title in relation to the land (s 13(1)(a)), or evidence of any native title determination application having been made in relation to the whole or a part of the land.

11. There is no evidence before the Court of any native title rights or interests in the land. Nor, in circumstances where the provisions of the Act for notification have been complied with and the relevant searches undertaken, is there any evidence of persons who have asserted or might seek to assert such rights.

12. Orders of the kind sought by the applicant have been previously made (Kennedy v Queensland (2002) 190 ALR 707; Deniliquin Local Aboriginal Land Council [2001] FCA 609; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1712; Peter Hillig in his capacity as administrator of the Worimi Local Aboriginal Land Council v Minister for Lands for the State of NSW [2005] FCA 1713).

13. I am satisfied that the application should be allowed and an order be made that no native title exists in relation to the land. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        1 September 2006

Solicitor for the Applicant:	Watson Mangioni
Counsel for the Respondent:	S Phillips
Solicitor for the Respondent:	NSW Native Title Services Ltd
Date of Judgment:	1 September 2006