Griffith Local Aboriginal Land Council v Attorney General of New South Wales [2023] FCA 457

FEDERAL COURT OF AUSTRALIA

Griffith Local Aboriginal Land Council v Attorney General of New South Wales [2023] FCA 457 File number(s): NSD 1178 of 2021

Judgment of: HALLEY J

Date of judgment: 12 May 2023

Catchwords: NATIVE TITLE – non-claimant application for determination of native title under s 61(1) of the Native Title Act 1993 (Cth) – extinguishment of native title – application granted

Legislation: Aboriginal Land Rights Act 1983 (NSW) ss 36, 36AA, 40, 42, 50 Crown Lands Act 1884 (NSW) s 48 Murrumbidgee Irrigation Act 1910 (NSW) ss 6, 8 Native Title Act 1993 (Cth) ss 13, 23B, 23C, 23F, 47, 47A, 47B, 61, 61A, 63, 66, 84, 81, 86G, 237A, 253 Public Works Act 1900 (NSW) ss 36, 37, 38 Public Works Act 1912 (NSW) Racial Discrimination Act 1975 (Cth)

Cases cited: Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96; [1998] HCA 58 Gandangara Local Aboriginal Land Council v Attorney General of New South Wales [2013] FCA 646 Griffith Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1501 Lawson v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1127 Lawson v Minister Assisting the Minister for Natural Resources (Lands) [2004] FCAFC 308 Munn for and on behalf of the Gunggari People v Queensland (2001) 115 FCR 109; [2001] FCA 1229 Mace v State of Queensland (2019) 274 FCR 41; [2019] FCAFC 233 Watson v Western Australia (No 3) [2014] FCA 127 Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3 Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936

Division: General Division

Registry: New South Wales

National Practice Area: Native Title

Number of paragraphs: 42

Date of last submission/s: 2 November 2022

Date of hearing: Determined on the papers

Solicitor for the Applicant: Ashurst

Solicitor for the First Respondent: Ms Z Spencer on behalf of the first respondent

Solicitor for the Second Respondent: Ms M Vaughan on behalf of the second respondent

ORDERS NSD 1178 of 2021

BETWEEN: GRIFFITH LOCAL ABORIGINAL LAND COUNCIL ABN 79 251 966 502 Applicant

AND: ATTORNEY GENERAL OF NEW SOUTH WALES First Respondent

NTSCORP LIMITED Second Respondent

order made by: HALLEY J DATE OF ORDER: 12 MAY 2023

THE COURT DETERMINES THAT:

1. Native title does not exist in relation to the land and waters described as Lot 2 in Deposited Plan 1159461. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HALLEY J:

INTRODUCTION 1 The applicant, the Griffith Local Aboriginal Land Council, seeks a determination that native title does not exist in respect of a parcel of land located within the Griffith local government area in New South Wales (Application Area). The Application Area is more fully described as the land contained in Lot 2 in Deposited Plan 1159461. 2 The applicant filed a non-claimant native title determination application on 12 November 2021 (Application), seeking a determination under s 61(1) of the Native Title Act 1993 (Cth) (NTA) that native title does not exist in relation to the Application Area. On the same date, the New South Wales Aboriginal Land Council (NSWALC) was appointed by the applicant to act as its agent in these proceedings. 3 The applicant seeks a determination on the basis that native title has been extinguished over the Application Area by "one or more prior acts of the Crown". 4 The applicant filed written submissions and the affidavits of Jarrod Chapman and Clare Lawrence in support of the non-claimant application. 5 The first respondent, the Attorney General for the State of New South Wales, and the second respondent, NTSCORP Limited also filed written submissions. 6 By reason of s 84(4) of the NTA, the first respondent is a party to the non-claimant application in his capacity as the State Minister for NSW, as defined in s 253 of the NTA. It has been held that the role of the State Minister in native title proceedings is to look after the interests of the community generally: Munn for and on behalf of the Gunggari People v Queensland (2001) 115 FCR 109; [2001] FCA 1229 at [29] (Emmett J); Watson v Western Australia (No 3) [2014] FCA 127 at [6] (Gilmour J); Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936 at [8] (Perry J). Further, I am satisfied that the obligation of the State Minister to be "satisfied as to the cogency of the evidence upon which the applicants rely" in consent determinations (see Munn at [29] (Emmett J)) applies equally by analogy to unopposed non-claimant applications. In neither case is there a contradictor and both fall within Part 4, Division 1C of the NTA, which is headed "Agreements and Unopposed Applications". 7 The submissions filed by the first respondent, consistently with that role and obligation were advanced to assist the Court in relation to the question of whether native title had been extinguished over the Application Area. 8 The second respondent, filed a notice under s 86G of the NTA confirming that it neither consented nor opposed orders in the form sought in the non-claimant application. 9 There was no opposition to the Application. Further, I was satisfied that the formal requirements for an application had been established and therefore the Court had power to make the orders sought in the Application. For these reasons, the matter was dealt with on the papers pursuant to s 86G(1) of the NTA.

BACKGROUND 10 The applicant is a Local Aboriginal Land Council established under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). 11 On 9 April 2019, the applicant entered into an Aboriginal Land Agreement (ALA) under s 36AA of the ALRA with the Minister for Lands and Forestry and the NSWLC. 12 On 22 July 2019, the Application Area was transferred to the applicant. The applicant holds an estate in fee simple in the Application Area, subject to any existing native title rights, pursuant to s 36AA(8) and s 36(9) of the ALRA. 13 Any transfer of lands to an Aboriginal Land Council for an estate in fee simple is subject to any native title rights and interests existing in relation to the lands immediately before the transfer: s 36(9) of the ALRA. Land that is vested in an Aboriginal Land Council cannot be dealt with (as defined by s 40(1) of the ALRA) by the Aboriginal Land Council unless the land is the subject of an approved determination of native title: s 42(1) of the ALRA.

FORMAL REQUIREMENTS 14 I am satisfied that this Court has jurisdiction in respect of the Application by reason of s 81 of the NTA. 15 A search of the National Native Title Registers was performed by the National Native Title Tribunal (NNTT) on 18 October 2021. The search confirmed that there are no native title claims over the Application Area, nor is it covered by an approved determination of native title, as required by s 13(1) and s 61A(1) of the NTA. 16 On 19 November 2021, the NNTT notified the applicant that: (a) in accordance with s 63 of the NTA, the Registrar had received a copy of the Application and accompanying documents from this Court on 15 November 2021; and (b) pursuant to s 66(2) and s 66(2A) of the NTA, the Registrar gave a copy of the Application and accompanying documents filed in the this Court to the New South Wales government and the representative body for the area covered by the Application. 17 The NNTT produced the Notice of the Application (Notice) required by the NTA. In accordance with s 66(8) of the NTA, the Notice stated that the notification period was for three months, commencing 9 February 2022 and ending on 9 May 2022. 18 On 19 January 2022, the NNTT notified the applicant that the Registrar had given notice of the Application to the following persons and bodies: (a) in accordance with s 66(3)(a) of the NTA: (i) Ms Mishka Holt, Principal Legal Officer, NTSCORP Ltd; (ii) Senator The Hon Michaelia Cash, Attorney-General, c/- Assistant Secretary of the Native Title Unit Civil Law Division, Attorney-General's Department; (iii) Mr Brett Stonestreet, General Manager, Griffith City Council; (iv) Telstra Corporation, c/ - Dr Scott Singleton, King & Wood Mallesons; (v) Mr Maria Liu, Senior Legal Counsel, Transgrid; (vi) Mr Yuseph Deen, Acting Chief Executive Officer, NSWALC; (b) in accordance with s 66(3)(b) of the NTA, Registrar Katie Stride, National Judicial Registrar – Native Title, Federal Court of Australia; and (c) in accordance with s 66(3)(c) of the NTA: (i) Ms Jodi Denehy, Crown Solicitor, Crown Solicitor's Office; and (ii) Mr Daniel Byers, Director - Native Title Legal Services, NSW Department of Planning, Industry & Environment. 19 On 26 January 2022, the Notice was published in the Koori Mail and Griffith Area News. 20 On 9 February 2022, the Notice was published on the NNTT website. 21 On 9 May 2022, NTSCORP filed a Form 5 Notice of intention to become a party to the Application and was joined as a party to the proceedings on 10 May 2022. 22 On 23 May 2022, the NNTT notified the applicant that a search of the Register of Native Title Claims conducted on 23 May 2022 showed that there were no relevant entries on the Register that fell within the external boundary of the Application Area. 23 I am satisfied that the Application has been made and progressed in accordance with the NTA. Accordingly, I am satisfied that the Court has the power to make the orders requested.

EXTINGUISHMENT OF NATIVE TITLE

Statutory provisions and principles 24 The relevant question for the Court in determining any non-claimant application, whether contested or unopposed, is: "has the applicant discharged its burden of proof that no native title exists in the claim area?": see Mace v State of Queensland (2019) 274 FCR 41; [2019] FCAFC 233 at [44] (Jagot, Griffiths and Mortimer JJ). 25 An applicant can establish that native title does not exist on two bases. First, on the basis that any native title that did exist has been extinguished: Gandangara Local Aboriginal Land Council v Attorney General of New South Wales [2013] FCA 646 at [19], [59]-[70] (Griffiths J). Second, on the basis that no native title exists because it is either not claimed or cannot be proved by a native title claimant: Mace at [76] citing Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 at [48(a)] (Griffiths J). 26 If the Court is satisfied native title has been extinguished, it is unnecessary for the Court to consider the second basis: Mace at [49] and Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3 at [58]-[59] (Moore, Mansfield and Perram JJ). 27 Subject to s 47, s 47A and s 47B of the NTA, which do not apply in the present case, extinguishment of native title (whether by force of the NTA or by prior extinguishing acts at common law) is permanent. Section 237A of the NTA provides: The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect. (Emphasis in original.) 28 Division 2B of the NTA confirms the past extinguishment of native title by valid or validated acts, which are defined as being an act that is either a "previous exclusive possession act" (PEPA) (s 23B of the NTA) or "previous non-exclusive possession act" (s 23F of the NTA). 29 A PEPA that is attributable to the Commonwealth has the effect of extinguishing native title rights and interests (s 23C of the NTA) and includes provision for the confirmation by States and Territories of the extinguishing effect of PEPAs attributable to the States and Territories (s 23E of the NTA). 30 Pursuant to s 23B(2) of the NTA, an act is also a PEPA if: (a) it is valid, (b) it took place on or before 23 December 1996, and (c) consists of the grant or vesting of an interest specified by s 23B (2)(c) of the NTA. Section 23B(3) provides: Vesting of certain land or waters to be covered by paragraph (2)(c) (3) If: (a) by or under legislation of a State or a Territory, particular land or waters are vested in any person; and (b) a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation; the vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters. … Exclusion of Crown to Crown grants etc. (9C) If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act: (a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or (b) if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters – unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters. (Emphasis in original.)

Consideration

Applicant's contentions 31 The applicant contends that any native title rights and interests that may have existed in the Application Area have been wholly extinguished by the following PEPAs: (a) Conditional Lease 1885-56; (b) Conditional Lease 1885-68; and (c) an appropriation of a crown road for the purpose of the Murrumbidgee Irrigation Act 1910 (NSW) (Irrigation Act) under the Public Works Act 1900 (NSW) (PWA).

Conditional leases 32 Conditional leases 1885-56 and 1885-68 were granted pursuant to s 48 of the Crown Lands Act 1884 (NSW) (CLA). Each lease is a "scheduled interest" for the purposes of s 23B(2) of the NTA, as set out at item 2(1) of Part 1 of Schedule 1 to the NTA. 33 At the time the conditional leases were granted, the CLA provided for the grant of such leases to any applicant under Part III for a conditional purchase in the Eastern and Central Divisions of NSW. The Application Area is in the Central Division of NSW and both conditional leases were granted over the Application Area. Section 48 of the CLA provided that any grant of a conditional lease of land adjoining a conditional purchase of land could not exceed three times the area of the conditional purchase area and, in the Central Division, the conditional lease together with the conditionally purchased land could not exceed 2,560 acres. 34 The Gazette notification for the grant of Conditional Lease 1885-68 over Portion 14 in the County of Cooper, Parish of Wyangan, records that it was granted over 1,200 acres. The area of the lease was not more than three times the size of the conditional purchase application area (1885-34, 20 August 1885) of 400 acres and when combined with the conditional purchase application area, it extended to 1,600 acres, being an area not more than 2,560 acres. The footprint of the lease covers part of the Application Area. 35 The Gazette notification for the grant of Conditional Lease 1885-56 over Portion 21 in the County of Cooper, Parish of Wyangan, records that it was granted over 1,960 acres. The area of the lease was not more than three times the size of the conditional purchase application area (1885-10, 6 August 1885) of 640 acres and when combined with the conditional purchase application area, it extended to 2,560 acres,, being an area not more than 2,560 acres. The footprint of the lease covers part of the Application Area.

Appropriation of Crown land 36 The remainder of the footprint of the Application Area was appropriated under s 36 of the PWA for the purpose of the Irrigation Act. It vested in the "Constructing Authority on behalf of Her Majesty for an estate in fee simple" by a Gazette notification dated 6 November 1912. 37 The Irrigation Act permitted the Governor under the PWA to, among other things, "appropriate any Crown land not under lease or licence included within the boundaries described in Schedule One to [that] Act" and such "appropriation shall be deemed to be made for an authorised work": s 6(1) of the Irrigation Act. Schedule One included the area described as the whole of the Parish of Wyangan, in which the Application Area is located. Pursuant to the Irrigation Act, the Secretary for Public Works was the constructing authority: s 8(2) of the Irrigation Act. 38 Section 36 of the PWA provided the Governor could by notification "to be published in the Gazette and in one or more newspapers published or circulated in the police district wherein is situated the land" declare the land described therein appropriated. Pursuant to s 37 of the PWA, where the land taken was Crown land, the effect of publication of the notification in the Gazette was that the land: vested in the Constructing Authority on behalf of Her Majesty for the purposes of this Act for an estate in fee simple in possession, freed and discharged from all trusts, obligations, estates, interests, contracts, charges, rates, rights-of-way, or other easements whatsoever, and to the intent that the legal estate therein, together with all powers incident thereto, or conferred by this Act, shall be vested in such Authority as a trustee. 39 The effect on native title of the equivalent provisions in the Public Works Act 1912 (NSW) (PWA 1912) to ss 36-38 of the PWA, and their effect on native title were considered by Whitlam J in Lawson v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1127. His Honour stated that it was the publication of the Gazette notification that satisfied the three requirements of s 23B(2) of the NTA, including that it constituted the vesting of a "freehold estate": see Lawson at [22] (Whitlam J). The reasoning of Whitlam J in Lawson has been affirmed by the Full Court in Lawson v Minister Assisting the Minister for Natural Resources (Lands) [2004] FCAFC 308 at [28] (Wilcox, Sackville and Finn JJ). 40 I am satisfied that the effect of the publication of the notification in the Gazette under the equivalent provisions to the PWA 1912 in the PWA vests in the Constructing Authority a freehold estate satisfying s 23B(2)(c) of the NTA by reason of ss 36-38 of the PWA. The act was valid (s 23B(2)(a) of the NTA) and took place prior to 23 December 1996 (s 23B(2)(b) of the NTA). Further, the act satisfies the requirement in s 23B(9C)(a) of the NTA. It was a Crown-to-Crown grant that apart from the NTA validly extinguishes native title. The vesting of a freehold estate, prior to the commencement of the Racial Discrimination Act 1975 (Cth), validly extinguishes any native title rights and interests at common law: Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96; [1998] HCA 58 at 126 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Griffith Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1501 at [40], [42] (Abraham J) (specifically in the context of s 23B(9C) of the NTA). 41 I am satisfied that the vesting under the PWA of the estate in fee simple to the Constructing Authority constitutes a PEPA.

DISPOSITION 42 A determination is to be made that there is no native title in relation to the Application Area. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.

Associate: Dated: 12 May 2023