FEDERAL COURT OF AUSTRALIA Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 File number: NSD 1472 of 2016 Judge: GRIFFITHS J Date of judgment: 7 September 2017 Catchwords: NATIVE TITLE – non-claimant application that native title does not exist in respect of particular land – application upheld Legislation: Native Title Act 1993 (Cth) ss 13, 23B, 23C, 23E, 39, 61, 66, 81, 86G, 225, 251D, 253 Aboriginal Land Rights Act 1983 (NSW) ss 3, 36, 40AA, 42, 42E, 42G, 50, Native Title (New South Wales) Act 1994 (NSW) Div 2 of Part 4 Cases cited: Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 Application for the Determination of Native Title made by the Metropolitan Local Aboriginal Land Council [1998] FCA 402 Cain v Glass (No 2) (1985) 3 NSWLR 230 Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 Deniliquin Local Aboriginal Land Council [2001] FCA 609 Gale v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 374 Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Land Water Conservation [2011] FCA 77 Gandangara Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 646 Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 Jerrinja Local Aboriginal Land Council v Attorney-General of the State of NSW [2013] FCA 562 Kennedy v Queensland [2002] FCA 747; 190 ALR 707 Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 Worimi Local Aboriginal Land Council v Minister for Lands for NSW & Anor (No. 2) [2008] FCA 1929; 181 FCR 300 Worimi (aka Worimi Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 Date of hearing: Determined on the papers Date of last submissions: 10 June 2017 Registry: New South Wales Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 55 Counsel for the Applicant: Mr D Beckett Solicitor for the Applicant: Chalk & Behrendt Lawyers and Consultants Counsel for the Attorney-General of NSW: Ms NF Case Solicitor for the Attorney-General of NSW: Crown Solicitor's Office Solicitor for NTSCORP Limited: Ms M Holt of NTSCORP Limited ORDERS NSD 1472 of 2016 BETWEEN: DEERUBBIN ABORIGINAL LAND COUNCIL Applicant AND: ATTORNEY-GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 7 SEPTEMBER 2017 THE COURT DETERMINES AND DECLARES THAT: 1. Native title does not exist in relation to the land and waters that is Lots 1, 2 and 4 in DP1226110 at North Parramatta in the Parish of Field of Mars, County of Cumberland in the State of New South Wales. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GRIFFITHS J: 1 The applicant seeks a determination pursuant to s 13(1)(a) and the related provision in s 61 of the Native Title Act 1993 (Cth) (NT Act) that native title does not exist in relation to the land which comprises Lots 1, 2 and 4 in DP1226110 at North Parramatta in the Parish of Field of Mars, County of Cumberland in the State of New South Wales (the Land). 2 The reason that this determination is sought relates to the applicant's restrictions in dealing with the land as a result of ss 36(9) and 42 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). The effect of s 36(9) is that the applicant's fee simple title to the Land is subject to any native title that existed in relation to it immediately prior to its transfer to the applicant. The effect of s 42 of the ALR Act is that the applicant, as an Aboriginal Land Council in NSW, may not deal with land subject to native title rights and interests unless that land is subject to an approved determination of native title. 3 For the reasons given below, a determination will be made substantially as sought by the applicant. Summary of background matters 4 The applicant is the holder of a freehold title over the Land, which comprises the Parramatta Gaol and some surrounding lands. The Land has an approximate area of 63,700m2. It is relevant to record how the fee simple interest in the Land was transferred to the applicant. 5 On or about 24 February 2012, the NSW Aboriginal Land Council made a claim in relation to Parramatta Gaol and surrounding lands pursuant to s 36 of the ALR Act. At that time the Land was known as Lot 2 in DP734689 at North Parramatta in the Parish of Field of Mars, County of Cumberland in the State of New South Wales, and this is how the Land is described in the non-claimant application dated 5 September 2016 before this Court. The Court was informed that that claim was refused by the Minister Administering the Crown Lands Act on or about 28 June 2013. 6 The NSW Aboriginal Land Council appealed against the refusal to the NSW Land and Environment Court (the LE Court) (in proceedings numbered LEC 3087 of 2013) pursuant to s 36(6) of the ALR Act. 7 On 12 December 2014 the LE Court allowed the appeal. The Minister Administering the Crown Lands Act, who was the respondent in those proceedings, was ordered to transfer the Land to the applicant in fee simple within 24 months, or such other timeframe as agreed by the parties. Pursuant to those orders, a plan of subdivision of Lot 2 in DP734689 was registered and the applicant became the registered proprietor of the Land. As a result of subdivision, Lot 2 in DP734689 is now properly described as the Land. 8 The Court understands from the material before it that the purpose of the application is to enable the applicant to deal with the Land to benefit its members and other Aboriginal people in its area. The applicant has stated that its anticipated dealings include applying for development consent to enable it to demolish hazardous buildings on the Land, and granting easements including in connection with the construction of a pad-mount electricity substation. The applicant is not required to demonstrate or prove how it proposes to deal with the Land for the purposes of the non-claimant application. Some procedural matters 9 The notification period for the non-claimant application filed on 5 September 2016 was 16 November 2016 to 15 February 2017. Public notice was given in the Parramatta Advertiser and Koori Mail on 2 November 2016. During the notification period, no application for a determination of native title had been filed in respect of the Land. 10 On 7 June 2017 and 9 June 2017 respectively, NTSCORP Limited (NTSCORP), being the State native title representative body, and the Attorney-General of NSW, filed notices under s 86G of the NT Act that each party did not oppose orders in, or consistent with, the terms sought by the applicant. The Court made orders by consent on 13 June 2017 that the proceeding be determined unopposed in accordance with s 86G of the NT Act without holding a hearing. 11 The applicant relied on two affidavits. The first is by Mr Kevin Cavanagh sworn on 1 May 2017. The second is by Ms Eloise Grace Kneebone affirmed on 27 April 2017. 12 In his affidavit, Mr Cavanagh deposed that he is the Chief Executive Officer of the applicant. Mr Cavanagh deposed that the applicant is a Local Aboriginal Land Council constituted by s 50 of the ALR Act, and is required to follow the objects and functions set out in that Act. He described the applicant's title to the Land, the reason that a determination of native title is sought in the current proceedings and how the non-claimant application was notified to the public. Mr Cavanagh also gave evidence regarding the historical grants and works in relation to the Land, which are summarised at [24]ff below, and the outcome of prior native title litigation that he regarded was related to the Land. 13 Regarding the outcome of prior native title litigation, Mr Cavanagh explained that the Land was previously within the external boundaries of a native title claimant application made by Mr Colin Rex Gale and others on behalf of the Darug Tribal Aboriginal Corporation (Darug Tribal claim). That claim commenced in May 1997 and was discontinued in February 2011 (Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Land Water Conservation [2011] FCA 77 (Gale No 1)). 14 While the Darug Tribal claim was on foot, a native title claim by Mr Dennis Charles Gale on behalf of the Darug People in relation to a single parcel of land in the Lower Portland area of NSW (the Darug Lower Portland claim) was heard and determined (Gale v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 374 (Gale No 2)). After a three day hearing, Mr Gale's solicitor advised the Court that his client wished to discontinue the proceedings. After further discussions between the parties and submissions were made to the Court, the matter proceeded to determination. On 7 September 2004 the Court determined that there was no native title in relation to the land the subject of that claim. 15 Mr Cavanagh deposed that the Darug Tribal claim lasted a further six years after the Darug Lower Portland claim, during which there were several unsuccessful attempts between the State of NSW and Mr Gale to negotiate an indigenous land use agreement (ILUA). Mr Gale sought leave to discontinue the Darug Tribal claim. This was opposed by the applicant in the current proceedings, which drew attention to: (a) the significance of the Court's findings in the Darug Lower Portland claim and the link between that claim and the Darug Tribal claim; (b) the effect that maintaining the claim (without any prospect of success) had had on the performance of the applicant's functions, including its land claiming functions for the benefit of the Aboriginal people of Western Sydney; and (c) the fact that discontinuance would not satisfy the need for a determination of native title arising from s 40AA of the ALR Act (now s 42). 16 The Court allowed the applicant to discontinue the Darug Tribunal claim in Gale No 1, but acceded to the applicant's request that conditions be placed on the commencement of any further native title claim on behalf of the Darug People (however described). 17 Among the documents annexed to Mr Cavanagh's affidavit was a copy of a letter dated 14 November 2016 from the National Native Title Tribunal to the solicitor for the applicant, which stated that the notification period for the non-claimant application would be 16 November 2016 to 15 February 2017, and that it would be publicly notified in the Parramatta Advertiser and Koori Mail on 2 November 2016. A copy of the public notice was attached to the letter. Mr Cavanagh also annexed a copy of an overlap analysis report dated 2 March 2017 (NNTT Report) obtained from the National Native Title Tribunal which confirmed that, as at that date, there were no registered native title determinations, applications or ILUAs in relation to the Land. 18 In her affidavit, Ms Kneebone deposed that she was a part time paralegal employed by the solicitor for the applicant. Ms Kneebone gave evidence that she attended the State Archives and Records, Western Sydney Records Centre at 161 O'Connell Street, Kingswood, NSW, on 8 March 2017, to search for and obtain records relating to some early land grants at Parramatta. Her findings were used in support of the applicant's submissions in relation to public works on the Land, summarised below. Key statutory provisions 19 It is desirable to set out some key statutory provisions of the NT Act that are relevant to this application: 23B Previous exclusive possession act (1) This section defines previous exclusive possession act. Grant of freehold estates or certain leases etc. on or before 23.12.1996 (2) An act is a previous exclusive possession act if: (a) it is valid (including because of Division 2 or 2A of Part 2); and Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2. (b) it took place on or before 23 December 1996; and (c) it consists of the grant or vesting of any of the following: … (ii) a freehold estate; … Construction of public works commencing on or before 23.12.1996 (7) An act is a previous exclusive possession act if: (a) it is valid (including because of Division 2 or 2A); and (b) it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996. 23C Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth Public works (2) If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth: (a) the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and (b) the extinguishment is taken to have happened when the construction or establishment of the public work began. 23E Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory. 251D Land or waters on which a public work is constructed, established or situated In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. 253 Other definitions public work means: (a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities: (i) a building, or other structure (including a memorial), that is a fixture; or (ii) a road, railway or bridge; or (iia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2—a stock-route; or (iii) a well, or bore, for obtaining water; or (iv) any major earthworks; or (b) a building that is constructed with the authority of the Crown, other than on a lease. 20 It is also apt to set out relevant provisions of Div 2 of Pt 4 of the Native Title (New South Wales) Act 1994 (NSW): Division 2 Confirmation of extinguishment of native title by previous exclusive possession acts 20 Confirmation of extinguishment of native title by previous exclusive possession acts of the State (NTA, secs 23E and 23C) (2) Public works If an act is a previous exclusive possession act under section 23B (7) (which deals with public works) of the Commonwealth Native Title Act and is attributable to the State: (a) the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated, and (b) the extinguishment is taken to have happened when the construction or establishment of the public work began. The applicant's submissions summarised Exclusive possession acts 21 In respect of each Lot making up the Land, the applicant submitted that native title was extinguished by one or more previous exclusive possession acts attributable to the State of NSW pursuant to s 23E of the NT Act and Div 2 of Pt 4 of the Native Title (New South Wales) Act 1994 (NSW). Lot 1 22 The applicant submitted that Lot 1 in DP1226110 (Lot 1), being the area occupied by Parramatta Gaol itself, has been the subject of one or more previous exclusive possession acts attributable to the State of NSW, consisting of the valid construction or establishment of public works on or before 23 December 1996, namely the Parramatta Gaol complex (citing ss 23B(7)(b), 251D and the definition of "public work" in s 253 of the NT Act). In support of this submission, the applicant referred to materials annexed to Mr Cavanagh's affidavit affirmed on 1 May 2017, including a 1943 aerial image and a contemporary aerial image obtained from the Spatial Services NSW "SIX Maps" website, and an extract from a report prepared by Mr James Semple Kerr dated June 1995 for the Department of Corrective Services titled "Parramatta Correctional Centre – its Past Development and Future Care" (June 1995 Report). It chronicles: (a) the design and commencement of construction of the third (current) gaol at Parramatta under Governor Bourke (with support from the Legislative Council) between 1835 and 1842; (b) the use of the incomplete gaol between 1841 and the early 1860s under the first superintendent Thomas Allen; (c) additions to the complex in that time, including the 1858-1859 construction of male and female prison hospitals according to the specifications of Visiting Justice David Graham Forbes; (d) the expansion of the gaol between 1861-1866 undertaken by the Colonial Architect's office; (e) further extensions to the gaol perimeter (including by the resumption of neighbouring land and a land swap with the neighbouring Parramatta Hospital for the Insane) and additional buildings up to end of the 19th century, including the notorious radial "exercise yard" designed by the Government Architect in 1899; and (f) later expansions and works up to 1993 including the construction of the Linen Service in the 1970s and its transfer to the Health Commission of NSW. Lot 2 23 Lot 2 in DP1226110 (Lot 2) comprises an area beyond the western wall of the Parramatta Gaol complex. The applicant submitted that previous exclusive possession acts in relation to Lot 2 included the grant of a freehold title and the construction or establishment of public works that commenced on or before 23 December 1996. This, it was submitted, supported a finding that native title in relation to Lot 2 has been wholly extinguished, citing ss 23B(2)(c)(ii) and 23B(7) of the NT Act respectively. 24 In support of its submission that Lot 2 was the subject of the grant of two freehold titles, the applicant relied on archival records annexed to Ms Kneebone's affidavit. The first grant was in 1792 to former convict Mr Charles Smith in relation to 30 acres that became known as Smith's Farm. The second grant was in 1812 to the Rev. Samuel Marsden in relation to 36 acres which included Smith's Farm. The applicant said these were two of the earliest freehold grants in Parramatta. 25 The applicant cited two articles obtained from the City of Parramatta Council Research Services website which provided historical accounts of the grants. One article is titled "North Parramatta, the First Land Grants" and dated 5 August 2015. It contains images showing that the grants to both Mr Smith and the Rev. Marsden covered most, if not all, of Lot 2. The other article is titled "Reverend Samuel Marsden's Mill and Mill Dam Farm" and is dated 13 August 2015. It details the use made of the Marsden land grant, its sale to Mr John Blaxland in 1842 and its subsequent acquisition for use as part of the Parramatta Lunatic Asylum. Similar historical accounts of the two grants are set out in a report titled "North Parramatta Government Sites (North) – Archaeological Assessment Report" dated April 2000 and prepared by the Department of Public Works and Services (AA Report). 26 In support of its submission that Lot 2 was the subject of public works by or on behalf of the State of NSW or a statutory authority of the same on or before 23 December 1996, the applicant relied on the AA Report. The report chronicles: (a) the construction of the Parramatta water mill under the supervision of the Rev. Marsden, who was superintendent of public works at Parramatta; (b) the transfer of the Female Factory (located south of the Land) to the Parramatta Lunatic Asylum; (c) the acquisition by the Colonial government in 1866 of the grant to the Rev. Marsden (including the established vineyard), which by then was held by Mr Blaxland, for use by the Parramatta Lunatic Asylum; (d) the renaming of the Lunatic Asylum as Parramatta Hospital for the Insane under the control of a local superintendent reporting to the Inspector General for the Insane pursuant to the Lunacy Act 1878 (NSW); and (e) the expansion of that facility onto the land which is now Lot 2, including the establishment and construction of the "temporary" female weatherboard division of the hospital that was used for almost a century (being demolished only in the 1970s). 27 While many of the public works previously constructed on Lot 2 have been demolished, the applicant stated that the previous extent of the works is illustrated by: (a) a sequence of plans in the AA Report depicting the progressive development of the area over the period 1812 to 1998; (b) a similar sequence of plans in the July 2004 report titled "North Parramatta Mixed Use Zone - Master Plan" prepared by the Government Architect's Office Urban Design Group; (c) a 1930 aerial photographic mosaic of the area in the AA Report, showing the Parramatta Gaol and also the Female Weatherboard Division in context; and (d) a 1943 aerial image obtained from the NSW Spatial Services SIX Maps online facility. 28 A contemporary image of the extent of the works remaining on Lot 2 was also provided to the Court. Lot 4 29 The applicant described Lot 4 on DP1226110 (Lot 4) as a small parcel encompassing the high wall that divides the Parramatta Linen Service complex (being, Lot 1 in DP734689) from Lot 2. Citing the article titled "North Parramatta, the First Land Grants" dated 5 August 2015 and the June 1995 Report, the applicant submitted that Lot 4 was previously contained within the land grant to the Rev. Marsden referred to above, and that the wall within Lot 4 was constructed in 1898 to wall in a prison farm and was rebuilt after 1922. Procedure, previous proceedings and statutory purpose 30 The applicant submitted that the following reasons indicate that, quite apart from the issue of extinguishment, native title is not likely to exist. 31 No application for a determination of native title had been filed in respect of the Land during the notification period (see [9] above). 32 The decision of the Court in Gale No 2 makes it extremely unlikely that "those who previously asserted native title in relation to land within boundaries that included Parramatta" will ever be able to establish a claim over the Land. 33 Gale No 1 is also significant for requiring the native title claim group to obtain the leave of the Court before commencing any new claimant application. That order was made at the request of the applicant who submitted, in opposing the request for leave to discontinue, that maintaining the claim for such a lengthy period had prejudiced the performance of its statutory functions and that discontinuance would result in it having to make non-claimant applications such as in the current proceedings. 34 The purpose of the current proceedings is to enable the applicant to deal with the Land so as to fulfil its statutory functions and objects, including to compensate the Aboriginal people of NSW for past injustices and provide them with a means to address their present social and economic disadvantage (citing the Preamble and s 3 to the ALR Act and the Preamble to the NT Act). The applicant considered it important for the Court to have regard to the significant overlap between the purposes of the ALR Act and the NT Act, and the fact that a group of people which includes potential native title holders is intended to benefit from the Land being dealt with by the applicant. 35 The applicant also noted that ss42G(5) and 42E of the ALR Act require a Local Aboriginal Land Council, such as the applicant, to obtain approval from its members and the NSW Aboriginal Land Council in order to deal with its land, and its members are to have regard to the impact of the proposed dealing on the "cultural and heritage significance of the Land to Aborigines". The respondents' submissions summarised 36 The State Attorney-General submitted that the formal requirements of the application were met. There was no evidence of a continued existence or otherwise of native title to the Land, and even if there was, the applicant's primary documentary and secondary historical records provide reliable evidence that any native title in relation to the Land has been extinguished. 37 It was submitted that the evidence provided by the applicant in relation to the Darug Tribal Claim and the Darug Lower Portland Claim was not material to the question of whether or not native title exists, as those claims related to neighbouring parcels of land and were distinguishable from the Land (citing Eden Local Aboriginal Land Council v NTSCORP Ltd [2010] FCA 745 per Jacobson J) and should be disregarded by the Court. Further, there was no evidence in this case relating to the proximity or otherwise of the single parcel claimed in Gale No 2 and the present application. 38 Similarly, while the Courts have viewed the existence of earlier claimant applications that did not result in any determination of native title as indicating that there may be Aboriginal people who may believe that they have native title rights and interests in relation to the Land, where no claim exists and no joinder has occurred in response to the notification of this non-claimant application, non-claimant applications have been granted (citing Worimi Local Aboriginal Land Council v Minister for Lands for NSW & Anor (No. 2) [2008] FCA 1929; 181 FCR 300 (Worimi No 2) and Jerrinja Local Aboriginal Land Council v Attorney-General of the State of NSW [2013] FCA 562). 39 No submissions were made by NTSCORP. Disposition of the application 40 An approved determination of native title has the meaning given by subsections 13(3), (4) and (7) of the NT Act (see s 253 of the NT Act). Section 13 of the NT Act relevantly provides: (1) 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; … (3) Subject to subsection (4), each of the following is an approved determination of native title: (a) a determination of native title made on an application under paragraph (1)(a) … 41 A determination of native title, as defined by s 225 of the NT Act, is "a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters …". 42 The NNTT Report shows that there is no approved determination in relation to the Land, as at 2 March 2017. The Court is satisfied that the application meets the requirements of s 13(1) of the NT Act. 43 Item 1 in s 61(1) of the NT Act provides that "a person who holds a non-native title interest in relation to the whole of the area to which the determination is sought" may make an application "… as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title". Such an application, according to s 253 of the NT Act, is a "non-claimant application" by virtue of it not being a "claimant application". 44 As the registered proprietor of the Land, the Court finds that the applicant has standing to make an application under s 61(1) of the NT Act. Formal requirements - notice of the Application 45 Section 66(1) of the NT Act requires the Native Title Registrar to provide copies of the application to the relevant State Minister (s 66(2)) and the appropriate representative bodies (s 66(2A)). The Native Title Registrar is also required to give notice to certain persons or bodies (s 66(3)(a)) and to "notify the public in the determined way" (s 66(3)(d)). Section 66(10)(c) requires a notice under s 66(3)(a) or (d) to include a statement to the effect that "a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months" starting from the date of the notification, or seek leave from the Court to be joined. 46 Once that period has ended, this requirement is satisfied. 47 The Court finds that these requirements have been met. Proof of non-claimant applications 48 There are two bases upon which the Court may be satisfied that native title does not exist in relation to land the subject of a non-claimant application: (a) native title does not presently exist because it is not claimed by or cannot be proved by a native title claimant (eg Gandangara Local Aboriginal Land Council v Minister for Lands for the State of NSW [2011] FCA 383 per Perram J); (b) native title has been extinguished by prior acts of the Crown (eg Gandangara Local Aboriginal Land Council v Attorney-General of New South Wales [2013] FCA 646 per Griffiths J; Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 per Perram J at [44]). 49 Justice Bennett's judgment in Worimi No 2 dealt with a non-claimant application by Worimi Aboriginal Land Council which was opposed by several Aboriginal people. Her Honour observed that the onus of proof lies on the non-claimant applicant, who must prove that, on the balance of probabilities, no native title exists in relation to the land the subject of the application (at [49]). However, a non-claimant applicant is not required to disprove each of the elements of native title that a claimant applicant must establish (at [61] and [88]). 50 A non-claimant application will ordinarily be judged, and the evidence adduced in support of it will be weighed, in accordance with the general principle that not all evidence is within the power of all parties to an application (at [57] and [60], citing Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 at 565). 51 If a respondent to a non-claimant application establishes that native title may well exist (by adducing for example evidence from "traditional owners" about the boundaries of traditional lands, areas of significance to that group, perhaps supported by archaeological or anthropological evidence), then the non-claimant applicant may be required to refute that evidence (perhaps by demonstrating extinguishment in relation to that area) (Worimi No 2 at [52] and [55] and affirmed on appeal Worimi (aka Worimi Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 at [58]). Importantly, the Full Court emphasised that each case has to be addressed according to its own particular facts. 52 Where an unopposed non-claimant application in which orders are sought by consent of the parties and: (a) notice has been given to the relevant representative body under s 66 of the NT Act; (b) public notice has been given under s 66 of the NT Act and no response received following that notice; and (c) National Native Title Tribunal (NNTI) searches establish that there is: no previous approved determination of native title in the land the subject of the application; and no current application in relation to the land the subject of the application, the Court is normally "entitled to be satisfied that no other claim group or groups assert a claim to hold native title to the land" and that finding "supports an inference of an absence of native title" (Worimi No 2 at [46] citing Commonwealth v Clifton [2007] FCAFC 190; 164 FCR 355 at [59]). 53 In accordance with the guiding principles identified in Worimi No 2, many non-claimant applications have been granted on the basis of proof of the formal requirements of the NT Act only, in the absence of any detailed evidence about the existence or otherwise of native title (see, for example, Application for the Determination of Native Title made by the Metropolitan Local Aboriginal Land Council [1998] FCA 402; Deniliquin Local Aboriginal Land Council [2001] FCA 609 and Kennedy v Queensland [2002] FCA 747; 190 ALR 707). That is not to say, however, that every case must be approached by reference to such cases. Primacy has to be given to the statutory language. The cases simply provide general guidance on how those powers should be exercised and applied by reference to the particular facts and circumstances of each individual case. There is a danger in viewing statements in individual cases too literally and as though they provide the answer in all cases. A more sophisticated approach is required, one which ultimately focuses upon the relevant statutory provision as applied in the particular facts and circumstances of an individual case. As McHugh JA said in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248: In Cassell & Co Ltd v Broome [1972] AC 1027 at 1085, Lord Reid warned of the danger of placing reliance on the literal words of particular judgments instead of searching for the applicable principle. His Lordship said: … experience has shown that those who have to apply the decision of other cases and still more those who wish to criticise it seem to find it difficult to avoid treating sentences and phrases in a single speech as if they were provisions in an Act of Parliament. They do not seem to realise that it is not the function of noble and learned Lords or indeed of any judges to frame definitions or to lay down hard and fast rules. It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive. 54 The Court accepts the State Attorney-General's submission that the evidence in relation to the Darug Tribal claim and the Darug Lower Portland claim is not material to the question of whether or not native title exists in this case, as it is not clear from the evidence whether the land the subject of those claims was in fact the Land. However, the Court is satisfied that the remaining evidence here establishes that: (a) s 66 notice has been given, has expired and no native title claimants have come forward. This entitles the Court to be satisfied that no other claim group asserts claims to native title and supports the inference that there is no native title in relation to the Land (Worimi No 2 at [46] and [47], as affirmed in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3 at [30] and [82]); and (b) the NNTT Report shows that there are no overlaps with other claims. Conclusion 55 Considering that the parties to the proceeding all agree that the Court has power to make the determination as sought by the applicant in the particular circumstances of this case, and having regard to all the matters above, the Court is satisfied that the relevant requirements of the NT Act have been met and an order will be made as sought by the applicant. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 7 September 2017