DENILIQUIN LOCAL ABORIGINAL LAND COUNCIL [2001] FCA 609

FEDERAL COURT OF AUSTRALIA

Deniliquin Local Aboriginal Land Council [2001] FCA 609 NATIVE TITLE – application for determination that no native title rights and interests exists – whether any such native title exists.

Native Title Act 1993 (Cth) ss 66 and 86G Aboriginal Land Rights Act 1983 (NSW) ss 36(1), 36(9), 36(9A) and 40AA(1) DENILIQUIN LOCAL ABORIGINAL LAND COUNCIL

No N 6005 of 2000 CONTI J SYDNEY 23 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N6005 OF 2000

APPLICATION FOR DETERMINATION OF NATIVE TITLE

MADE BY THE DENILIQUIN LOCAL ABORIGINAL

LAND COUNCIL

JUDGE: CONTI J

DATE OF ORDER: 23 MAY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. It be determined that native title does not exist in relation to the subject land. 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 N6005 OF 2000

APPLICATION FOR DETERMINATION OF NATIVE TITLE

MADE BY THE DENILIQUIN LOCAL ABORIGINAL

LAND COUNCIL

JUDGE: CONTI J

DATE: 23 MAY 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Before me is an application dated 20 June 2000 for a determination that no native title rights and interests exist in relation to land situated at Deniliquin known as Lot 529 Barham Road, Deniliquin. The land is situated in the Local Government area of Deniliquin, in the State of New South Wales. The Applicant is the Deniliquin Local aboriginal Land Council ("DLALC"), which is the title holder of the subject land. 2 The land comprises of 2.3 hectares of vacant unimproved land, with a post and ring-lock boundary fence, situated on the outskirts of the Deniliquin township. Such land was transferred to and vested in the DLALC pursuant to the grant of a claim in respect of land under s 36 of the Aboriginal Land Rights Act 1983 (NSW). The records of DLALC indicate that such claim was lodged as land claim No 5730 on 22 January 1996 and was granted on 21 January 1998. Under the New South Wales Act, provision is made in Division 2 of Part 6 for land rights claims to Crown Lands. By s 36(1), claimable Crown Lands are defined in several respects, including: "claimable Crown lands means land vested in her Majesty that, when a claim is made for the lands under this Division: … (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act or the Native Title (New South Wales) Act 1994,…" By virtue of s 36(9) of the Aboriginal Land Rights Act 1983 (NSW), such transfer to DLALC was subject to any native title rights and interests existing in relation to the land immediately before the transfer. Consequently, the Aboriginal Land Council nor the DLALC can deal with the land vested in it if it is subject to native title rights under s 36(9) or (9A) unless the land is the subject of an approved determination of native title under the Native Title Act 1993 (Cth): see s 40AA Aboriginal Land Rights Act 1983 (NSW). 3 In the present case, the Applicant requires a determination that no native title exists because a prospective purchaser, Mr Glen Haines, has offered to purchase the land for a sum of $40,500.00. The other party to the Application, the New South Wales Aboriginal Land Council, neither consents nor opposes the determination. 4 The evidence before the Court consists of documentary material including an affidavit sworn by Ms Rosemary Dunn on 14 May 2001 (co-ordinator of DLALSC) and an affidavit sworn by Mr Matthew Lawrence Lees (solicitor for the Applicant) on 23 May 2001. The affidavit of Mr Lees provides relevant information concerning the Native Title Tribunal's fulfilment of the obligations set out in s 66 of the Native Title Act 1993 (Cth). On the evidence before me, the Tribunal has provided copies of the application to the representative body for the area, the New South Wales Aboriginal Land Council. The Tribunal has also notified the registered Aboriginal and Torres Strait Islander Body for the area, the Commonwealth Attorney General and Deniliquin Municipal Council. It is evident from such letters that the Tribunal indicated that if any party desired to have their native title rights and interests recognised in the Federal Court's determination, they would need to become a party to the application on or before 25 October 2000. As at today's date, no notices of intention to become a party were filed during the notification period. 5 When the matter was called on this morning, the Application was unopposed. Pursuant to s 86G of the Native Title Act 1993 (Cth), the Federal Court may make the following order: "(1) If, at any stage of the proceedings 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." On the evidence before me, I am satisfied that the Application should be allowed and an order be made that no native title claim exists over the subject land. The relevant search of the National Native Title Tribunal Register, which was made on 10 May 2001, discloses no claimant native title application over the subject land. Accordingly, the Court has jurisdiction to make the order sought. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.