La Perouse Local Aboriginal Land Council v Attorney General of New South Wales
[2019] FCA 1091
•11 July 2019
FEDERAL COURT OF AUSTRALIA
La Perouse Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 1091
File number: NSD 996 of 2018 Judge: ROBERTSON J Date of judgment: 11 July 2019 Catchwords: NATIVE TITLE – non-claimant application – where application “unopposed” for the purposes of s 86G of the Native Title Act 1993 (Cth) – whether any native title rights that might have existed have been extinguished Legislation: Native Title Act 1993 (Cth) ss 23B, 23C, 23E, 61, 66, 86G, 87
Aboriginal Land Rights Act 1983 (NSW) ss 36, 42
Crown Lands Consolidation Act 1913 (NSW) s 24
Native Title (New South Wales) Act 1994 (NSW) ss 8, 20, 21, 22
Cases cited: Pate v State of Queensland [2019] FCA 25 Date of hearing: Heard on the papers Date of last submissions: 25 June 2019 Registry: New South Wales Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: Mr C Gregory Solicitor for the Applicant: Norton Rose Fulbright Australia Counsel for the First Respondent Ms R Graycar with Ms H Morgan Solicitor for the First Respondent: Crown Solicitor’s Office, NSW Counsel for the Second Respondent: Ms T Jowett Solicitor for the Second Respondent: Ms M Holt of NTSCORP Limited ORDERS
NSD 996 of 2018 BETWEEN: LA PEROUSE LOCAL ABORIGINAL LAND COUNCIL
Applicant
AND: ATTORNEY GENERAL OF NEW SOUTH WALES
First Respondent
NTSCORP LIMITED
Second Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
11 JULY 2019
THE COURT DETERMINES THAT:
1.No native title exists in the land described as all of Lots 1, 2 and 3 in Deposited Plan 39760 and located in the Local Government Area of Randwick, Parish of Botany, County of Cumberland, New South Wales.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ROBERTSON J:
Introduction
These reasons concern an amended application under s 61(1) of the Native Title Act 1993 (Cth) filed by the applicant on 6 July 2018 for a determination that native title does not exist in three parcels of land – Lot 1 in DP39760, Lot 2 in DP39760, and Lot 3 in DP39760 – located in the Local Government Area of Randwick, Parish of Botany, County of Cumberland, in the State of New South Wales (the land).
In support of the application the applicant relies on the affidavits of Noni Shannon affirmed on 1 June 2018 and of Sonali Seneviratne affirmed on 1 February 2019. I accept that evidence.
Lot 1 in DP39760 was transferred to the applicant by the NSW Land and Housing Corporation under s 36 of the Aboriginal Land Rights Act 1983 (NSW) on 8 October 2012 and the applicant remains the registered proprietor.
Lot 2 and Lot 3 in DP39760 were transferred to the applicant under s 36 of the Aboriginal Land Rights Act on or around 27 February 2017 and the applicant remains the registered proprietor.
The applicant is the registered proprietor of the land and holds the fee simple in the land. The applicant therefore holds a non-native title interest in relation to the whole of the land for the purposes of paragraph (2) of the first item of the table in s 61(1), relating to native title determination applications.
On 6 July 2018, under s 63, the Registrar of the National Native Title Tribunal (NNTT) received a copy of the application from the Federal Court. Under ss 66(2) and (2A) the Registrar gave a copy of the application to the New South Wales government and to the representative body under the Native Title Act for NSW, NTSCORP Limited (NTSCORP).
As a consequence of notice being given by the Registrar on 1 August 2018, the notification period under s 66 for the application was from 22 August 2018 to 21 November 2018.
The NNTT publicly notified the application in the Koori Mail on 8 August 2018 and in the Southern Courier on 7 August 2018.
On 23 August 2018 NTSCORP filed a notice of intention to become a party under s 84(3)(b). The basis for NTSCORP’s application was that NTSCORP was funded for the purpose of performing the obligations of a representative body in NSW and the ACT, and that the land fell within the area in which NTSCORP performed those functions.
On 3 December 2018 NTSCORP was made a respondent party to the application.
No native title claimant applications were filed during or subsequent to the notification period, nor were any notices of intention to become a party filed during the notification period, other than by NTSCORP.
The land has never been the subject of an approved determination of native title, as indicated by a report from the NNTT dated 20 November 2017, a copy of which is annexed to Ms Shannon’s affidavit.
The applicant seeks that the application be determined on the papers without a hearing, pursuant to s 86G.
Statutory provisions
Section 86G of the Native Title Act provides:
86G 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.
Note:If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).
Meaning of unopposed
(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.
Section 87 relevantly provides:
87 Power of Federal Court if parties reach agreement
Application
(1)This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:
(a)agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
(i) the proceedings; or
(ii) a part of the proceedings; or
(iii) a matter arising out of the proceedings; and
(b)the terms of the agreement, in writing signed by or on behalf of the parties, are filed with the Court; and
(c)the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.
Power of Court
(1A)The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:
(a)whichever of subsection (2) or (3) is relevant in the particular case; and
(b) if subsection (5) applies in the particular case—that subsection.
Agreement as to order
(2)If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.
Note:If the application involves making a determination of native title, the Court’s order would need to comply with section 94A (which deals with the requirements of native title determination orders).
…
Section 23B relevantly provides:
23B Previous exclusive possession act
(1) This section defines previous exclusive possession act.
Grant of freehold estates or certain leases etc. on or before 23.12.1996
(2) An act is a previous exclusive possession act if:
(a) it is valid (including because of Division 2 or 2A of Part 2); and
Note:As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.
(b) it took place on or before 23 December 1996; and
(c) it consists of the grant or vesting of any of the following:
(i) …;
(ii) a freehold estate;
…
Section 23C relevantly provides:
23CConfirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth
Acts other than public works
(1)If an act is a previous exclusive possession act under subsection 23B(2) (including because of subsection 23B(3)) and is attributable to the Commonwealth:
(a)the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and
(b) the extinguishment is taken to have happened when the act was done.
…
Section 23E provides that if a law of a State contains a provision to the same effect as ss 23D or 23DA, the law of the State may make provision to the same effect as s 23C in respect of all or any previous exclusive possession acts attributable to the State. In this respect I refer to ss 8 (validating past acts attributable to the State), 20 (to the same effect as s 23C), 21 (to the same effect as s 23D) and 22 (to the same effect as s 23DA) of the Native Title (New South Wales) Act 1994 (NSW).
Submissions
The applicant filed written submissions on 1 February 2019. The applicant filed supplementary submissions on 7 March 2019, addressing the decisions in Pate v Queensland [2019] FCA 25 and Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 76.
On 30 April 2019, the Attorney General of New South Wales filed written submissions, together with an affidavit of Sasha Jane Lowes affirmed on the same date. I accept this evidence.
On the same date, the Attorney General also filed a notice under s 86G(2) to the effect that he did not oppose the Court making an order in, or consistent with, the terms sought by the applicant.
On 15 May 2019, NTSCORP filed its written submissions. On the same date, it also filed a notice under s 86G(2) to the effect that it neither consented to nor opposed orders in, or consistent with, the terms sought by the applicant. NTSCORP submitted it did not consider that it was necessary for the applicant to file any evidence from Aboriginal people in circumstances where the “land in question was used as a site for a Fire Brigade Station from 1908 and is a previous exclusive possession act.” In this respect NTSCORP referred to a Status Report by the NSW Department of Industry, Crown Land & Water Division, dated 5 April 2019, a copy of which was annexed to the affidavit of Ms Lowes.
The applicant filed submissions in reply on 4 June 2019. The applicant submitted that the Status Report annexed to Ms Lowes’ affidavit confirmed that the land was the subject of a grant to the Board of Fire Commissioners of New South Wales, which “... was of a freehold estate and was a previous exclusive possession act under s 23B(2)(c)(ii) of the Native Title Act 1993 (Cth), which under section 20(1) of the Native Title (New South Wales) Act 1994 (NSW) wholly extinguished native title.” The applicant agreed with NTSCORP’s submission that “native title was wholly extinguished in the land.”
On 25 June 2019 the Attorney General filed supplementary submissions (misdated 25 December 2018) directed to the issue, not previously considered by him, whether native title had been extinguished prior to 1980 and concluded by agreeing with the submissions of the applicant and NTSCORP that the Crown grant to the Board of the estate in fee simple of the land for use as a fire station wholly extinguished native title in the land.
Consideration
I find that there was a grant of the land to the Board in 1916 for use as a fire brigade station.
As set out at [11] of the supplementary submissions filed on behalf of the Attorney General on 25 June 2019, the relevant evidence as to that grant (contained in the Status Report, and its appendices, annexed to Ms Lowes’ affidavit) establishes the following:
a.The Land previously formed part of Portion 41, Parish of Botany, County of Cumberland;
b.Portion 41 was reserved from sale, lease etc. pursuant to s 101 of the Crown Lands Act 1884 (NSW) by notification in Government Gazette No. 130 on 18 November 1908, pending determination of the land to be set aside for a public purpose, namely a fire brigade station site;
c.The reservation from sale, lease etc. was revoked pursuant to s 30 of the Crown Lands Consolidation Act 1913 (NSW) by notification in Government Gazette No. 191 on 27 October 1915;
d.Portion 41 was dedicated as a site for a “Fire Brigade Station” pursuant to s 24 of the Crown Lands Consolidation Act by notification in Government Gazette No. 191, dated 27 October 1915. The relevant notification in the Gazette stated:
“ ... in accordance with the provisions of the 24th section of the Crown Lands Consolidation Act 1913, it is hereby notified that the various areas of Crown Land hereinbefore mentioned; and as more particularly described in the Schedule hereto, are hereby dedicated for the respective public purposes specified in connection therewith.”
The “purpose of dedication” noted next to Portion 41 in the schedule referred to is “Site for Fire Brigade Station.”
e.Portion 41 was subsequently granted to the Board on 18 January 1916 pursuant to s 24 of the Crown Lands Consolidation Act by Crown Grant Volume 2637 No. 201;
f.The reservation from sale, lease etc. was revoked pursuant to s 30 of the Crown Lands Consolidation Act by notification in Government Gazette No. 35 on 18 February 1916;
g.The dedication for the purpose of a Site for Fire Brigade Station and the Crown Grant of the Land to the Board were both revoked pursuant to s 25 of the Crown Lands Consolidation Act on 9 October 1970 by notification in Government Gazette No. 133 on 9 October 1970.
Crown Grant Volume 2637 No. 201 granted the land to the Board upon trust to be used as the site for a fire brigade station and no other use. Pursuant to s 24 of the Crown Lands Consolidation Act, the grant vested the estate in fee simple. The subsequent revocation of that grant did not operate retrospectively, but rather vested the land “forthwith” in the Crown: see s 25 of the Crown Lands Consolidation Act.
In these circumstances, I am satisfied that native title was extinguished. The grant was of a freehold estate and was a previous exclusive possession act by virtue of s 23B(2)(c)(ii). The relevant law of the State for the purposes of s 23E was s 20 of the Native Title (New South Wales) Act. By operation of that provision, the grant extinguished any native title in relation to the land.
I find that the application is unopposed for the purposes of s 86G. I am satisfied that an order in the terms sought by the applicant is within the power of the Court. I find that the formal requirements under s 66 are established.
To the extent that Pate may otherwise be relevant, I note that at [54]-[55] Reeves J observed that an application by an Aboriginal Land Council in New South Wales forced by s 42 of the Aboriginal Land Rights Act to apply for a negative determination of native title, in circumstances where the application is unopposed, may warrant a less stringent approach to the evidence necessary to discharge their onus (such as proof only of the formal requirements being established). In any event, I have found that any native title that might have existed has been extinguished.
Conclusion and orders
For these reasons I make the determination sought by the applicant.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 11 July 2019
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