Metropolitan Local Aboriginal Land Council v Attorney General of New South Wales

Case [2025] FCA 1183

FEDERAL COURT OF AUSTRALIA

Metropolitan Local Aboriginal Land Council v Attorney General of New South Wales [2025] FCA 1183

File number: NSD 1345 of 2023
Judgment of: MCDONALD J
Date of judgment: 26 September 2025
Catchwords: NATIVE TITLE – non-claimant application for determination under s 61(1) of Native Title Act 1993 (Cth) – where applicant prevented from dealing with land by Aboriginal Land Rights Act 1983 (NSW) absent determination that native title does not exist – whether David Berry Hospital Act 1906 (Cth) vested in Crown estate in fee simple – determination that native title validly extinguished
Legislation:

Native Title Act 1993 (Cth) ss 13, 23B, 23E, 66, 81, 84, 86G, 225, 253

Aboriginal Land Rights Act 1983 (NSW) ss 36, 42, 50

Crown Lands (Consolidation) Act 1913 (NSW)

Crown Lands Act 1884 (NSW) s 4

David Berry Hospital Act 1906 (NSW) ss 3, 4, 6, 7, 9

Interpretation Act 1987 (NSW) ss 5, 34

Native Title (New South Wales) Act 1994 (NSW) s 20

Real Property Act 1862 (NSW) s 40

Real Property Act 1900 (NSW) s 42
Cases cited:

Allen v Western Australia (Nyamal Palyku Proceeding) (No 2) [2020] FCA 788

Attorney-General (Quebec) v Attorney-General (Canada) [1921] 1 AC 401

Breskvar v Wall (1971) 126 CLR 376

Daniel v Western Australia [2003] FCA 666

Deerubbin Aboriginal Land Council v Attorney-General (NSW) [2017] FCA 1067

Dungog Shire Council v Attorney-General (NSW) [2024] FCA 166

Fejo v Northern Territory of Australia (1998) 195 CLR 96; [1998] HCA 58

Griffith Local Aboriginal Land Council v Attorney-General (NSW) [2020] FCA 1501

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

Jango v Northern Territory (2006) 152 FCR 150; [2006] FCA 318

Lawson v Minister Assisting the Minister for Natural Resources (Lands) (2004) 139 FCR 548; [2004] FCAFC 308

Leeton and District Local Aboriginal Land Council v Attorney-General (NSW) [2021] FCA 356

Mabo v Queensland (No 2) (1992) 175 CLR 1

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

New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130

Peldan v Anderson (2006) 227 CLR 471; [2006] HCA 48

Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373

Western Australia vWard (2002) 213 CLR 1; [2002] HCA 28
Division: General Division
Registry: New South Wales
National Practice Area: Native Title
Number of paragraphs: 75
Date of hearing: 13 May 2025
Counsel for the Applicant: Mr M L Wright SC with Mr O R Jones
Solicitor for the Applicant: Chalk & Behrendt
Counsel for the First Respondent: Mr J S Emmett SC with Mr R G M Hudson
Solicitor for the First Respondent: Crown Solicitor (NSW)
Counsel for the Second Respondent: Ms T L Jowett SC
Solicitor for the Second Respondent: NTSCORP Limited

ORDERS

NSD 1345 of 2023
BETWEEN:

METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL

Applicant
AND:

ATTORNEY GENERAL OF NEW SOUTH WALES

First Respondent

NTSCORP LIMITED

Second Respondent

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AGLC
Metropolitan Local Aboriginal Land Council v Attorney General of New South Wales [2025] FCA 1183
Case
[2025] FCA 1183
Decision Date

CaseChat Overview and Summary

The Metropolitan Local Aboriginal Land Council sought a determination under section 61(1) of the Native Title Act 1993 (Cth) to confirm that native title did not exist in relation to certain land, to enable it to deal with the land. The Attorney General of New South Wales opposed the application, asserting that native title remained in existence. The dispute was before the Federal Court of Australia. The central issue was whether the David Berry Hospital Act 1906 (Cth) operated to vest an estate in fee simple in the Crown, thereby extinguishing any native title in relation to the land. The court considered the construction and operation of section 3 of the David Berry Hospital Act, which purported to vest the land in the Crown, free from all estates and interests, and to divest any other person of any right, title or interest. The court concluded that the language of section 3 indicated that the rights transferred to the Crown amounted to an unqualified title, effectively granting a fee simple estate and wholly extinguishing any native title. The court found that the operation of section 3 of the David Berry Hospital Act was effective to vest an estate in fee simple in the Crown and that had the effect of extinguishing any then-subsisting native title in relation to the land. The Metropolitan Local Aboriginal Land Council had satisfied its burden of proving that native title did not exist in respect of the land. The court made a determination to that effect. There was no order as to costs.

Orders

Orders of the court

2. 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As indicated above, in light of the firm conclusion I have reached about the effect of s 3 of the DBH Act, it is not necessary to determine whether the 1825 grant was valid and effective to extinguish native title in respect of the Land, or whether the grant of the special lease in 1967 was valid and effective to extinguish native title.CONCLUSION For the reasons explained above, I consider that the operation of s 3 of the DBH Act was effective to vest an estate in fee simple in the Crown and that had the effect of extinguishing any then‑subsisting native title in relation to the Land. It follows that Metropolitan LALC has satisfied its burden of proving that native title does not exist in respect of the Land. It is appropriate to make a determination to that effect.

Ratio Decidendi

Legal Principle Established

The relationship between s 4(1), which contemplated the “residue of the lands” (that is, lands not used for the hospital) being used for public purposes or being sold or leased, and s 7, which required that “the net revenue derived from the lands” (up to 3.5% of the value of the land described in Schedule Two) be applied in the manner described, is far from clear. One possible view is that s 4 empowered the Governor to use the lands for any public purpose, or to sell or lease it, and not necessarily to pursue the purpose of raising revenue for the hospital, but that any revenue that was derived from the lands (up to the 3.5% cap) was required to be applied to the maintenance of the hospital or the other purposes described in s 7. It is not necessary to decide whether that is right.Construction and operation of s 3 of the DBH Act Metropolitan LALC and the Attorney‑General submit that the language of s 3 of the DBH Act, and in particular the expressions “vested in his Majesty, free from all estates and interests” and “divested from any other person having any right, title, or interest”, indicates that the rights being transferred to the Crown amount to unqualified title, free from any other interest in the Land. They submit that s 3 had the effect of granting a fee simple estate and therefore wholly extinguishing native title in the Land. In Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ drew a distinction between the resumption by the Crown of radical title with respect to land and the vesting of an estate in the land. Resumption would “not give the Crown any larger title to the land than the radical title acquired at sovereignty”, and did not mean “that the Crown acquired all right and title to the land” so as to extinguish native title (at 134-5 [208]). The distinction is perhaps most clearly drawn in the following passage (at 115 [151]):Just as the change in sovereignty at settlement worked no extinguishment of native title, the bare fact that there is statutory authority for the executive to deal with the land in a way which would, on the occurrence of that dealing, create rights inconsistent with the continued existence of native title rights will not suffice to extinguish native title. … Yet there may be cases where the executive, pursuant to statutory authority, takes full title or plenum dominium to land and it is clear that this would extinguish native title. Likewise, it may be that the assertion or exercise of some rights in relation to land which fall short of the taking of full title to it, may have some relevant effect on native title rights and interests.(Emphasis added.) However, it should be noted that the language of “resumption” was also, at least sometimes, historically used to describe the acquisition by the Crown of a fee simple estate in land from a private owner; the use of the word “resumption” was not limited to the mere restoration of the Crown’s radical title. Hence, for example, the term “resumption” was used to describe the effect of s 18 of the Public Works Act 1902 (WA), the operation of which was held, in Ward at 133-4 [204], to extinguish native title.