FEDERAL COURT OF AUSTRALIA Ngambri Local Aboriginal Land Council v Attorney-General of New South Wales [2012] FCA 1484 Citation: Ngambri Local Aboriginal Land Council v Attorney-General of New South Wales [2012] FCA 1484 Parties: NGAMBRI LOCAL ABORIGINAL LAND COUNCIL v ATTORNEY-GENERAL OF NEW SOUTH WALES and NTSCORP LIMITED NGAMBRI LOCAL ABORIGINAL LAND COUNCIL v ATTORNEY-GENERAL OF NEW SOUTH WALES and NTSCORP LIMITED NGAMBRI LOCAL ABORIGINAL LAND COUNCIL v ATTORNEY-GENERAL OF NEW SOUTH WALES and NTSCORP LIMITED File number(s): NSD 649 of 2012 NSD 650 of 2012 NSD 651 of 2012 Judge: JAGOT J Date of judgment: 19 December 2012 Legislation: Aboriginal Land Rights Act 1983 (Cth) Native Title Act 1993 (Cth) Cases cited: Eden Local Aboriginal Land Council v NTSCORP Ltd [2010] FCA 745 Ejai v Commonwealth (unreported, Supreme Court of Western Australia, Owen J, 18 March 1994) Munn (for and on behalf of the Gungarri People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 Worimi Local Aboriginal Land Council v Attorney-General of New South Wales [2012] FCA 146 Date of hearing: 19 December 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 18 In all matters: Counsel for the Applicant: Mr G Murphy of Baker Deane & Nutt Counsel for the First Respondent: Mr M Hill of Crown Solicitor Counsel for the Second Respondent: Ms M Holt of NTSCORP Limited IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 649 of 2012 BETWEEN: NGAMBRI LOCAL ABORIGINAL LAND COUNCIL Applicant AND: ATTORNEY-GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent JUDGE: JAGOT J DATE OF ORDER: 19 DECEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. There be a native title determination that no native title exists in Lot 87 in Deposited Plan 41996. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 650 of 2012 BETWEEN: NGAMBRI LOCAL ABORIGINAL LAND COUNCIL Applicant AND: ATTORNEY-GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent JUDGE: JAGOT J DATE OF ORDER: 19 DECEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. There be a native title determination that no native title exists in Lot 65 in Deposited Plan 754907. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 651 of 2012 BETWEEN: NGAMBRI LOCAL ABORIGINAL LAND COUNCIL Applicant AND: ATTORNEY-GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent JUDGE: JAGOT J DATE OF ORDER: 19 DECEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. There be a native title determination that no native title exists in Lot 113 in Deposited Plan 821709. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 649 of 2012 BETWEEN: NGAMBRI LOCAL ABORIGINAL LAND COUNCIL Applicant AND: ATTORNEY-GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 650 of 2012 BETWEEN: NGAMBRI LOCAL ABORIGINAL LAND COUNCIL Applicant AND: ATTORNEY-GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 651 of 2012 BETWEEN: NGAMBRI LOCAL ABORIGINAL LAND COUNCIL Applicant AND: ATTORNEY-GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent JUDGE: JAGOT J DATE: 19 DECEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before me are three applications under the Native Title Act 1993 (Cth) (the Act). Each of the applications is a non-claimant application within the meaning of that Act by the Ngambri Local Aboriginal Land Council. By the non-claimant applications the Ngambri Local Aboriginal Land Council seeks a determination that no native title exists in the land the subject of the applications. legislative scheme 2 A non-claimant application is provided for by virtue of the provisions of s 13 of the Act and the definition of non-claimant application in s 253 of the Act. In effect, a non-claimant application is a native title determination application that is not a claimant application. Claimant application is defined to mean a native title determination application that a native title claim group has authorised to be made and, unless the contrary intention appears, includes such an application that has been amended. 3 Relevant provisions of the Act include s 61, which provides that certain types of applications may be made under Division 1 of Part 3 of the Act to the Federal Court and also specifies the persons who may make each of those applications. In short, a native title determination application as referred to in s 13 can be made, relevantly, not only by a claimant, meaning a person or persons authorised by all the persons (that is, the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, but also by a person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought. 4 Further, by s 86G of the Act there is provision for unopposed applications. Section 86G(1) provides that if, at any stage of a proceeding in relation to an application under s 61, but after the end of the period specified in the notice given under s 66, the application is unopposed and 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. Section 86G(2) provides that for the purposes of s 86G 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. discussion 5 In the present case, there is evidence which satisfies me as to the following matters. 6 First, Ngambri Local Aboriginal Land Council is a person who holds a non-native title interest in relation to the whole of the area in relation to which each of the determinations is sought. Ngambri Local Aboriginal Land Council (the Land Council) holds these interests in circumstances where, as the evidence discloses, the land in question was transferred to the Land Council pursuant to the provisions of the Aboriginal Land Rights Act 1983 (NSW). Under that Act land was transferred to the Land Council as follows: (1) Lot 87 in Deposited Plan 41966 was transferred to the Land Council, then known as Ngunnawal Local Aboriginal Land Council, in or about 1998. A computer folio search dated 19 September 2012 is in evidence which shows that the Land Council is the registered proprietor of Lot 87 in DP 41996. (2) Lot 65 in Deposited Plan 754907 was transferred to the Land Council, then also known as Ngunnawal Local Aboriginal Land Council, the transfer being affected by issue of certificate of title on 22 August 2008. (3) Lot 113 in Deposited Plan 821709 was transferred to the Land Council on or about 14 October 2009. 7 Second, it is also apparent from the evidence that the period specified in the notice given under s 66 of the Act has expired, as required by s 86G(1). There is in evidence correspondence from the National Native Title Tribunal confirming that the notification period in respect of each of the non-claimant applications was 11 July 2012 to 10 October 2012. 8 Finally, it is apparent that the application is unopposed in that the two parties to the application, being the first and second respondents, have both given notice under s 86G(2) of the Act confirming that they do not oppose orders in or consistent with the terms sought by the applicant. 9 Certain other observations should be made, which is the reason why it is appropriate to deal with this matter in open court rather than in chambers. A making of a native title determination, including a determination that there is no native title in respect of land, is, as observed by Emmett J in Munn (for and on behalf of the Gungarri People) v Queensland (2001) 115 FCR 109; [2001] FCA 1229 at [22], a form of real action. Emmett J said at [22] that: The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes. 10 I agree with that observation. Accordingly, I consider it appropriate that this matter proceed in open court and in addition that I provide these reasons for the making of the orders which I propose to make. 11 The other relevant matter, as I have noted, is that that these matters involve an application for a determination that there is no native title over the land the subject of the applications. Accordingly, it is appropriate that there is in evidence in each of the matters an affidavit of Matilda Ann House. Ms House is 67 years old and has lived in Ngambri Aboriginal Country for the whole of her life. She is a Ngambri Aboriginal Elder and deposes to her being a traditional owner of Ngambri Country, as described in her affidavit. 12 In respect of Lot 87 in DP 41996, Ms House says that she personally knows the land and her observation, including from plans and photographs which have been shown to her, is that the land has an area of 4076 square metres and is situated in a commercial and industrial area of the City of Queanbeyan not more than two kilometres from the central business district of Queanbeyan. Ms House says that because of the size of the land and its location it is not suitable for any kind of customary Aboriginal activities and she is not aware that there are any existing or ongoing Aboriginal traditional ceremonies or practices taking place on Lot 87 in DP 41996. There is also evidence that at an extraordinary meeting of the members of the Land Council it was resolved that the subject land does not have any cultural or heritage significance for Ngambri people. 13 In respect of Lot 65 in DP 754907, Ms House has given evidence that while she is aware Lot 65 has an area of about 16 hectares, from her own observations and from her extensive contacts with the members of the Ngambri community Lot 65 is not an area which could sustain traditional Aboriginal activities of hunting and gathering or fishing. Further, there are no existing or ongoing Aboriginal traditional ceremonies or practices that are taking place on Lot 65 in DP 754907. Again, at an extraordinary meeting of the members of the Land Council it was resolved that this land does not have any cultural or heritage significance for the Ngambri people. 14 In respect of Lot 113 in DP 821709, Ms House notes that the land has an area of 4612 square metres and is situated in a residential area of the City of Queanbeyan not more than three kilometres from the central business district. Further, because of the size of the land and its location it is not suitable for any kind of customary Aboriginal activities and Ms House is aware that there are no existing or ongoing Aboriginal traditional ceremonies or practices that are taking place on that land. 15 As was pointed out by Cowdroy J in Worimi Local Aboriginal Land Council v Attorney-General of New South Wales [2012] FCA 146 at [16], evidence of this nature is important in matters such as this. As his Honour said, the "evidence of a person who has knowledge of cultural and traditional uses of land is invaluable in determining the existence of native title in piece of land: see Eden Local Aboriginal Land Council v NTSCORP Ltd [2010] FCA 745 at [24]". His Honour also referred to the decision of Owen J in Ejai v Commonwealth (unreported, Supreme Court of Western Australia, Owen J, 18 March 1994) where his Honour said at page 9: In claims touching on native title, the best evidence lies in the hearts and minds of the people most intimately connected to aboriginal culture, namely the aboriginal people themselves. Expert evidence from anthropologists and others is of significance and due regard must, and will, be afforded to it. However, it seems to me that the full story lies in the hearts and minds of the people. It is from there that it must be extracted. 16 It follows from these observations that such evidence is also important, indeed invaluable, in determining that native title does not exist in a piece of land, being the determination that is sought in the present case. The evidence of Ms House is invaluable for that purpose. 17 Accordingly, I am satisfied that all of the procedural and substantive requirements of the Act have been met in relation to these three applications and that I should thereby be satisfied in terms of s 86G that these unopposed applications should result in the making of orders for and to the effect that no native title exists in the subject land. 18 Orders will be made accordingly. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 21 December 2012