Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales

Case [2021] FCA 356

FEDERAL COURT OF AUSTRALIA

Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales [2021] FCA 356  

File number(s): NSD 75 of 2020
Judgment of: PERRY J
Date of judgment: 14 April 2021
Catchwords: NATIVE TITLE – non-claimant application under the Native Title Act 1993 (Cth) – where applicant/Aboriginal Land Council prevented from dealing with the land by the Aboriginal Land Rights Act 1983 (NSW) absent a determination of no native title – whether grant of an estate in fee simple validly extinguished native title – whether grant of a special lease under s 75 of the Crown Lands Consolidation Act 1913 (NSW) validly extinguished native title – where total extinguishment by the grants as previous exclusive possession acts is confirmed by the Native Title (New South Wales) Act 1994 (NSW) – determination made that no native title exists
Legislation:

Aboriginal Land Rights Act 1983 (NSW) ss 36, 40AA, 42

Crown Lands Act 1884 (NSW) s 90

Crown Lands Act 1989 (NSW)

Crown Lands Consolidation Act 1913 (NSW) ss 3, 75

Lands Acts Amendment Act 1875 (NSW) s 2

Mining Act 1874 (NSW)

Native Title (New South Wales) Act 1994 (NSW) ss 5, 20(1)

Native Title Act 1993 (Cth) ss 11, 13, 23B, 23C, 23E, 61, 63, 66, 81, 84, 86G, 94A, 203FE, 223, 237A, 249C, 253, Sch 1, Pt 1, cl 3

Western Lands Act 1901 (NSW) s 28A

Cases cited:

Brown v Western Australia [2012] FCAFC 154; (2012) 208 FCR 505

CG v Western Australia [2016] FCAFC 67; (2016) 240 FCR 466

Darkinjung Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1136

Deerubbin Local Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067

Hayes v Northern Territory [1999] FCA 1248; (1999) 97 FCR 32

Jerrinja Local Aboriginal Land Council v Attorney General of the State of NSW [2013] FCA 562

Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792

Mace v Queensland [2019] FCAFC 233; (2019) 274 FCR 41

Wik Peoples v Queensland (1996) 187 CLR 1

Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936

Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320
Division: General Division
Registry: New South Wales
National Practice Area: Native Title
Number of paragraphs: 43
Date of last submission/s: 24 September 2020
Date of hearing: Determined on the papers
Solicitor for the Applicant: Norton Rose Fulbright
Solicitor for the First Respondent: Department of Planning, Industry and Environment
Solicitor for the Second Respondent: NTSCORP Limited

ORDERS

NSD 75 of 2020
BETWEEN:

LEETON AND DISTRICT LOCAL ABORIGINAL LAND COUNCIL

Applicant
AND:

ATTORNEY GENERAL OF NEW SOUTH WALES

First Respondent

NTSCORP LIMITED

Second Respondent

ORDER MADE BY:

PERRY J

DATE OF ORDER:

14 APRIL 2021

THE COURT ORDERS THAT:

1.The non-claimant application is to be determined…

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Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales [2021] FCA 356
Case
[2021] FCA 356
Decision Date

CaseChat Overview and Summary

The Leeton and District Local Aboriginal Land Council sought a determination that no native title exists in certain land in New South Wales, to enable it to deal with the land without hindrance. The Attorney General of New South Wales did not oppose the application, but argued that native title had not been extinguished. The Federal Court was required to decide whether the land grants had validly extinguished native title. The court considered whether the grant of an estate in fee simple and a special lease under the Crown Lands Consolidation Act 1913 (NSW) were acts of total extinguishment of native title, confirmed by the Native Title (New South Wales) Act 1994 (NSW). The court concluded that the land council had discharged its burden of proving that any native title in the land had been extinguished, and made a determination that no native title exists in the land.

The court noted the caution that should be exercised before making a determination that no native title exists, but considered it appropriate to exercise the discretion to grant relief in such terms. The court determined that in the absence of any such determination, no dealings may be undertaken with respect to the land for the reasons explained. The court was satisfied that the land council had discharged its burden of proving that any native title in the land had been extinguished and that it was appropriate to make a determination that no native title exists in the land. The court considered that it was appropriate to make an order under s 86G that the unopposed non-claimant application be determined on the papers without a hearing pursuant to s 86G of the Native Title Act 1993 (Cth). There will be no order as to costs.

The orders of the court are that the non-claimant application is to be determined on the papers without a hearing pursuant to s 86G of the Native Title Act 1993 (Cth). The court also makes a determination that no native title exists in the land described as Lot 18 in DP 751682, Lot 264 in DP 751682, and Lot 280 in DP 726688, located in the Local Government Area of Narrandera Shire Council, Parish of Brobenah, County of Cooper, in the State of New South Wales. There is no order as to costs. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The non-claimant application is to be determined on the papers without a hearing pursuant to s 86G of the Native Title Act 1993 (Cth).

2. No native title exists in the land described as Lot 18 in DP 751682, Lot 264 in DP 751682, and Lot 280 in DP 726688, located in the Local Government Area of Narrandera Shire Council, Parish of Brobenah, County of Cooper, in the State of New South Wales.

3. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Bearing in mind the caution which should be exercised before making a determination that no native title exists even if proved on the balance of probabilities, I nonetheless consider that it is appropriate to exercise the discretion to grant relief in such terms given that in the absence of any such determination, no dealings may be undertaken with respect to the Land for the reasons I have earlier explained. 4. CONCLUSION For these reasons, I consider that it is appropriate to make an order under s 86G that the unopposed non-claimant application be determined on the papers without a hearing pursuant to s 86G of the NTA. I am also satisfied that the Land Council has discharged its burden of proving that any native title in the Land has been extinguished and that it is appropriate to make a determination that no native title exists in the Land. There will be no order as to costs.

Ratio Decidendi

Legal Principle Established

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