Forster Local Aboriginal Land Council v New South Wales Native Title Services Limited [2006] FCA 1455

FEDERAL COURT OF AUSTRALIA

Forster Local Aboriginal Land Council v New South Wales Native Title Services Limited [2006] FCA 1455

FORSTER LOCAL ABORIGINAL LAND COUNCIL v NEW SOUTH WALES NATIVE TITLE SERVICES LIMITED NSD 1798 OF 2005

GRAHAM J

7 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1798 OF 2005

BETWEEN: FORSTER LOCAL ABORIGINAL LAND COUNCIL

Applicant

AND: NEW SOUTH WALES NATIVE TITLE SERVICES LIMITED

Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 7 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT:

1. Orders, pursuant to s 47B of the Federal Court of Australia Act 1976 (Cth), that Mr Hagan of Baker & Borthwick Solicitors be allowed to appear before the Court by way of audio link. 2. Orders by consent that there be no mediation in relation to the whole of the proceeding in accordance with s 86B(2) of the Native Title Act 1993 (Cth). 3. Orders that no native title exists in relation to the land described as Lot 2 DP 1014466. 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 NSD 1798 OF 2005

BETWEEN: FORSTER LOCAL ABORIGINAL LAND COUNCIL

Applicant

AND: NEW SOUTH WALES NATIVE TITLE SERVICES LIMITED

Respondent

JUDGE: GRAHAM J

DATE: 7 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 What is presently before the Court is a non-claimant application, filed on 26 September 2005 by Forster Local Aboriginal Land Council ('the Land Council'), seeking a determination under s 61(1) of the Native Title Act 1993 (Cth) ('the Act') that native title does not exist in respect of certain land at Forster in the State of New South Wales. 2 The application, which was amended on 7 February 2006, concerns land having an area of 3325 square metres located in the Great Lakes Local Government Area, Parish of Forster and County of Gloucester. It is described as Lot 2 in DP 1014466 ('the Land'). It has frontages to Hadley Street, Bennetts Head Road and Boundary Street, Forster. 3 Receipt of the amended application on 9 February 2006 was acknowledged by the National Native Title Tribunal ('the Tribunal') by letter dated 10 February 2006. 4 The Land, which was previously unused Crown land, was transferred to the Land Council following a grant in respect of a land claim made in May 2002 pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW) ('the Aboriginal Land Rights Act') and is now the whole of the land comprised in Folio Identifier 2/1014466. Dealings with the land are restricted in accordance with ss 40 and 40AA of the Aboriginal Land Rights Act. Section 40AA(1) of the Aboriginal Land Rights Act relevantly provides: ' … a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).' 5 The Land is within a No 2(a) – Low Density Residential zone under the Great Lakes Local Environmental Plan 1996. It is unsewered but the area in which it is located is 'up for consideration' according to Midcoast Water. On 10 September 2004 the Land Council voted to dispose of the Land having received an offer to purchase it for $60,000. The Land Council now seeks an 'approved determination of native title' from this Court. 6 The land was valued for the Land Council as at 6 July 2004 with a market value of $550,000 assuming a 'dwelling entitlement' and $65,000 assuming that an application to erect a dwelling would be refused. 7 Section 81 of the Act confers jurisdiction on the Court to hear and determine applications that relate to native title. Section 13(1)(a) of the Act relevantly provides: 'An application may be made to the Federal Court under Part 3: (a) for a determination of native title in relation to an area for which there is no approved determination of native title; …' 8 The term 'determination of native title' is defined in s 225 of the Act as '… a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of …'. 9 A determination of native title made by the Court on an application under s 13(1)(a) of the Act is an approved determination of native title (see s 13(3)(a) of the Act). The Land Council submits that as the registered proprietor of the Land, it is entitled to bring the application, as the holder of a non-native title interest in relation to the whole of the area in relation to which the determination is sought 'within the meaning of s 61(1) of the Act' (which falls within Part 3). 10 The application is a 'non-claimant application' within the meaning of s 253 of the Act. 11 The evidence before the Court indicates that the notice provisions set out in ss 63 and 66 of the Act have been complied with. A letter dated 17 March 2006 from the Tribunal describes the measures taken to comply with s 66(3). The three month notification period ended on 28 June 2006. 12 The Minister for Lands for the State of New South Wales filed a notice of appearance on 24 October 2005 and subsequently filed a notice that he wished to cease to be a party to the proceedings on 6 December 2005. On 6 April 2006 New South Wales Native Title Services Limited ('NTS') sought to become a party. The Court had already ordered that NTS be joined as a party on 7 February 2006 pursuant to s 84(5) of the Act and declared that it was a party on 4 July 2006. No one else has sought to appear or has notified the Court of any interest in the present application. 13 The applicant read the affidavit of Donna Hall, Chairperson of the Land Council, sworn 17 July 2006. The annexures to Ms Hall's affidavit set out details of the searches undertaken in April 2005 for other claims under the Act and/or the Aboriginal Land Rights Act. 14 A search result of 'Nil' was recorded for each register type, save for the register type referred to as 'Unregistered Claimant applications'. The result of that search provided a reference to a Tribunal claim 'NC04/1'. The information provided by the Tribunal accompanying the search indicates that the land the subject of claim NC04/1 does not overlap with any part of the Land. In addition, the Tribunal's Geospatial Unit conducted a search of the registers on 29 June 2006 to identify any native title applications affecting any part of the land and advised that 'no applications fall within the external boundary of the non-claimant application NSD1798/05.' 15 I am satisfied that no prior approved determination of native title has been made in relation to the Land. 16 The applicant submits that the application may be dealt with under s 86G of the Act. Section 86G relevantly provides: '(1) If, at any stage of a proceeding in relation to an application under section 61, but after 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. (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.' 17 Short Minutes of Order signed by the solicitor for the applicant and the solicitor on the record for NTS consenting to the order sought have become an exhibit before me. NTS is now the only other party to the proceeding. 18 I am satisfied that the application is unopposed within the meaning of s 86G; that the Court has jurisdiction to hear the application and make the orders sought (see ss 13(1)(a) and 81. See also s 87 of the Act); that the applicant has standing to bring the application (ss 61(1) and 253); that appropriate notice of the application has been given (ss 63 and 66) and that no prior determination of native title has been made in relation to the Land. 19 Orders of the kind sought by the applicant have previously been made, see: Cruse (on behalf of the Eden Local Aboriginal Land Council) v New South Wales Native Title Services Ltd [2006] FCA 1124 and Hillig as Administrator of Worimi Local Aboriginal Land Council v NSW Native Title Services Ltd [2006] FCA 1184.