Federal Court of Australia Armidale Local Aboriginal Land Council v Attorney General of New South Wales [2024] FCA 50 File number: NSD 1011 of 2022 Judgment of: SHARIFF J Date of judgment: 6 February 2024 Catchwords: NATIVE TITLE – non-claimant application for determination of native title under s 61(1) of the Native Title Act 1993 (Cth) – determination sought under s 86G of the Native Title Act that no native title exists over the determination area – whether within power and appropriate to make orders sought – application allowed Legislation: Native Title Act 1993 (Cth) ss 13(1), 61(1), 66, 66(2), 66(2A), 66(3), 66(10), 81, 84(4), 85, 86G, 86G(1), 203FE(1), 223, 225, 253 Federal Court Rules 2011 (Cth) r 9.05 Native Title (Notices) Determination 2011 (No 1) (Cth) s 6 Aboriginal Land Rights Act 1983 (NSW) ss 36(9), 42, 50 Cases cited: Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210; (2021) 287 FCR 1 Deerubbin Aboriginal Land Council v A-G (NSW) [2017] FCA 1067 Gandangara Local Aboriginal Land Council v Attorney General of New South Wales [2013] FCA 646 Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 Mace v Queensland [2019] FCAFC 233; (2019) 274 FCR 41 Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 Tweed Byron Local Aboriginal Land Council v A-G (NSW) [2019] FCA 936; 373 ALR 667 Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113 Watson v Western Australia (No 3) [2014] FCA 127 Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320 Division: General Division Registry: New South Wales National Practice Area: Native Title Number of paragraphs: 40 Date of last submissions: 20 October 2023 Date of hearing: Determined on the papers Counsel for the Applicant: Mr Charles Gregory Solicitor for the Applicant: Legal Minds Solicitors Solicitor for the First Respondent: Crown Solicitor's Office Counsel for the Second Respondent: Dr Angus Frith ORDERS NSD 1011 of 2022 BETWEEN: ARMIDALE LOCAL ABORIGINAL LAND COUNCIL Applicant AND: ATTORNEY GENERAL OF NEW SOUTH WALES First Respondent NTSCORP LIMITED Second Respondent order made by: SHARIFF J DATE OF ORDER: 6 February 2024 THE COURT ORDERS THAT: 1. Pursuant to s 61(1) of the Native Title Act 1993 (Cth), there is no native title in relation to the land located at 38 Myrtle Drive, Armidale in the State of New South Wales, being: (a) Lot 2 in Deposited Plan 1230555; (b) Lot 6 in Deposited Plan 1230555; (c) Lot 7 in Deposited Plan 1230555; (d) Lot 1120 in Deposited Plan 39591; (e) Lot 1121 in Deposited Plan 39591; (f) Lot 1123 in Deposited Plan 39591. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SHARIFF J: 1 The applicant, the Armidale Local Aboriginal Land Council (Land Council), seeks a determination under s 61(1) of the Native Title Act 1993 (Cth) (NT Act) that there is no native title in relation to certain areas of the land located at 38 Myrtle Drive, Armidale in the State of New South Wales, specifically, the areas of land comprised in and identified as: (a) Lot 2 in Deposited Plan 1230555; (b) Lot 6 in Deposited Plan 1230555; (c) Lot 7 in Deposited Plan 1230555; (d) Lot 1120 in Deposited Plan 39591; (e) Lot 1121 in Deposited Plan 39591; (f) Lot 1123 in Deposited Plan 39591. 2 The Land Council is the registered proprietor of these parcels of land (referred to together as the Land). It holds the fee simple in the Land. The Land had been the subject of land claims under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). The fee simple in Lot 1120 in DP39591, Lot 1121 in DP39591 and Lot 1123 in DP39591 was transferred to the Land Council under the ALR Act on 22 November 2016. The fee simple in Lot 2 in DP1230555, Lot 6 in DP1230555 and Lot 7 in DP1230555 was transferred to the Applicant under the ALR Act on 24 July 2017. 3 Pursuant to s 36(9) of the ALR Act each of the parcels of the Land was transferred to the Land Council subject to any native title rights and interests existing in the parcel immediately before the transfer. 4 Since the relevant transfers, each parcel of the Land has been subject to a restriction under s 42 of the ALR Act that the Applicant must not deal with the Land unless it is the subject of an approved determination of native title. The Land Council now wishes to "deal" with the Land for the purposes of the ALR Act, but before doing so requires a determination under the NT Act that native title does not exist in the Land: see Mace v Queensland [2019] FCAFC 233; (2019) 274 FCR 41 at [8]-[11]; Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210; (2021) 287 FCR 1 at [14]. 5 The two respondents to the application, the Attorney General of New South Wales (Attorney General) and NTSCORP Limited (NTSCORP), filed, pursuant to s 86G of the NT Act, notices disclosing that the Attorney General does not oppose the orders sought by the Land Council and NTSCORP neither opposes nor consents to those orders. 6 The Land Council relied on the following affidavits in support of its application: (a) Christopher Kimberly Charles Serow sworn 17 July 2023; (b) Veronica Margaret Noreen Walford affirmed 30 August 2023; (c) Benjamin Scott affirmed 5 September 2023; and (d) Clive Terrence Ahoy affirmed 7 September 2023. 7 The respondents did not file any evidence in relation to the substantive application in the proceedings. 8 For the reasons that follow, I have decided to make the orders sought by the Land Council. STATUTORY FRAMEWORK 9 Section 13(1) of the NT Act permits an application to be made to the Court for an "approved determination of native title" in relation to an area for which there is no other approved determination of native title. The Court has jurisdiction to hear and determine applications that relate to native title under s 81 of the NT Act. 10 Section 61(1) of the NT Act specifies the persons who may make applications for an approved determination. Relevantly, this includes 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": see Mace at [33]. An "interest" in relation to land includes a legal or equitable interest in the land (s 253 of the NT Act). The Land Council was incorporated under s 50 of the ALR Act and is the registered proprietor of the Land and therefore has standing to make this application: Deerubbin Aboriginal Land Council v A-G (NSW) [2017] FCA 1067 at [44]; Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 at [9]. 11 A "determination of native title" is defined in s 225 of the NT Act to be a determination of whether or not "native title" (as defined in s 223) exists in the relevant area, and this includes a negative determination. 12 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]. 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 at [48(a)]. 13 Section 253 of the NT Act provides for both claimant applications and non-claimant applications, and both types of application must be provided to the Native Title Registrar (Registrar) who is required to undertake the notification process in accordance with s 66 of the NT Act: Mace at [35]-[37]. The Registrar must provide a copy of the application to the relevant State Minister and to the appropriate representative bodies: s 66(2) and (2A) of the NT Act. The Registrar is also required to give notice to persons or bodies specified in s 66(3)(a) of the NT Act and to "notify the public in the determined way": s 66(3)(d) of the NT Act. By s 66(10)(c) of the NT Act, a notice under s 66(3)(a) or (d) must include a statement to the effect that, in relation to a non-claimant application, "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 on the notification day", or seek leave from the Court to become a party. Once that period has ended, the notification requirement is satisfied. 14 Section 6 of the Native Title (Notices) Determination 2011 (No 1) (Cth) provides that a notice under s 66(3) of the NT Act must be published by advertisement in one or more newspapers that circulate generally throughout the area to which the notice relates, or, if the area is an offshore place, the geographical area closest to it that is an onshore place; and in a relevant special-interest publication. 15 The principles applicable to the determination of a non-claimant application were outlined by the Full Court in Mace and in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; 181 FCR 320. Referencing Mace, Jagot J summarised these principles at [10] in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113, as follows: (1) The special functions vested in an Aboriginal Land Council are not material to the question whether such a body, as a non-claimant applicant seeking a determination that there is no native title in relation to land, has discharged its onus of proof. As a non-claimant applicant, an ALC is in the same position as any other non-claimant applicant under the NTA: [12]; (2) The reason for a non-claimant application does not govern the Court's approach to the exercise of the power: [42]; (3) Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application: [44]. (4) The overriding proposition is that each case must be assessed on its own particular facts: [47]; (5) Relevant considerations will include the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any particular evidence adduced by the parties: [48]; (6) The Court must act on evidence, direct or indirect, which can be weighed against the case brought by the non-claimant applicant: [52]; (7) All issues are to be assessed on the usual standard of proof in civil litigation — proof on the balance of probabilities. A non-claimant applicant will either meet this standard or will not: [54]; (8) A non-claimant application does not involve any general inquiry into what native title rights and interests may have existed at sovereignty or any general inquiry into how those rights or interests may or may not have continued: [55]; (9) The provisions of the NT Act are intended to facilitate all persons with a proper interest in an area of land taking steps to ensure that their interest is taken into account when the Court is making a native title determination with respect to that land. However, it is not necessary to employ evidentiary or adversarial presumptions to the task which may have been developed by the common law in different contexts from native title determinations: [56]. A better approach is to focus on what the evidence before the Court does establish, whether before or against the determination sought by the non-claimant applicant: [56]. Similarly common law maxims developed in different contexts are also of limited utility to the determination of a non-claimant application: [57]–[60]; (10) In a non-claimant application the applicant seeks a negative determination in rem. In this context recourse to common law maxims developed in different contexts may not be useful: [61]; (11) In a non-claimant application it is inappropriate to impose a specific evidential burden on a respondent such as the respondent need only make out a "prima facie" position. This would involve a gloss on the application of the usual burden and standard of proof which applies equally to claimant and non-claimant applications: [63]; (12) The question whether native title does not exist (in a non-claimant application) or does exist (in a claimant application) is to be decided according to the balance of probabilities by reference to the circumstances of each case and on the evidence adduced without recourse to maxims or presumptions originating in different adversarial contexts: [64]. In this regard it may be noted that in Worimi at [74] the point was made that a respondent to a non-claimant application is not subject to any onus of proof. The onus remains at all times on the applicant for the non-claimant application; (13) In a non-claimant application account needs to be taken of the gravity of a negative determination and its permanency in terms of its effect on native title rights and interests which are otherwise sought to be protected by the NT Act: [66]; (14) No hard and fast rules can be laid down about what evidence might be required or might suffice for a non-claimant applicant to meet the required standard of proof: [68]. Given what is at stake and the fact that any determination affects property rights as against the whole world no prescriptive approaches or glosses on the statute should be imposed. The Court has a wide discretion whether or not to make a negative determination and the potential combination of considerations which may arise in any particular application cannot be predicted or turned into any kind of checklist: [72]; (15) If the burden of proof on a non-claimant application has been discharged it may be a rare case in which the discretion is exercised not to make a negative determination but in principle the discretion exists and the Court should not foreclose consideration of the question whether it is appropriate to make the order in all of the circumstances of the case: [73]; (16) The Court's task is not to be more or less "stringent" depending on the kind of case before it but is to decide if the non-claimant applicant has discharged its burden of proof. In doing so the subject-matter of the non-claimant application and the consequences of a negative determination inform the requisite level of persuasion for a negative determination: [82]; (17) The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title in the land the subject of the non-claimant application which is objectively arguable, not evidence of the potential for the assertion of native title. A representative body is best placed to assist Aboriginal and Torres Strait Islander peoples to provide such evidence. The quality of such evidence, rather than its extent, will be determinative: [97]. 16 By reason of the operation of s 84(4) of the NT Act, the Attorney General is a party to the non‐claimant application in his capacity as the State Minister for New South Wales. The State Minister's role in proceedings of this kind is in the nature of parens patriae "to look after the interests of the community generally": see Munn (for and on behalf of the Gunggari People) v Queensland [2001] FCA 1229; 115 FCR 109 at [29]; Watson v Western Australia (No 3) [2014] FCA 127 at [54] ; Tweed Byron Local Aboriginal Land Council v A-G (NSW) [2019] FCA 936; 373 ALR 667 at [8]. The State Minister must be "satisfied as to the cogency of the evidence on which the applicants rely": Munn at [29]. 17 As noted, neither the Attorney General nor NTSCORP opposes the orders that are sought by the Land Council. In such circumstances, s 86G(1) of the NT Act empowers the Court to make orders without holding a hearing, if it appears appropriate to do so. In the present matter, I was satisfied that it was appropriate to do so including in circumstances where I have received the helpful written submissions of all of the parties. CONSIDERATION 18 The key questions for determination are: (a) whether the orders sought by the Land Council are within the power of the Court to make; and (b) whether it is appropriate for the Court to make the orders sought. 19 As to the first question, the Land Council filed the present application in accordance with ss 13(1) and 61(1) of the NT Act, and, as noted above, the Land Council's interest in the parcels is the fee simple. The orders sought by the Land Council are therefore within the power of the Court. 20 As to the second question, the Land Council contended that native title does not exist because it has not been claimed, or cannot be proven by, a native title claimant. The Land Council did not contend that any native title that did exist had been extinguished. As noted above, the Court must be satisfied on the evidence that native title does not exist in the Land. The Land Council holds the onus of proof to establish this fact on the balance of probabilities. 21 The Land Council adduced evidence that the formal notification requirements have been satisfied. This evidence establishes that the Registrar gave a notice pursuant to s 66(3) of the NT Act on 8 February 2023. The notification period of 3 months prescribed in s 66(10)(c) ended on 8 May 2023. No prospective respondent party filed a Form 5 notice seeking to become a respondent party within that 3 month period. However, orders were later made by consent on 1 June 2023 pursuant to r 9.05 of the Federal Court Rules 2011 (Cth) and s 85of the NT Act to join the NSW native title representative body, NTSCORP, as a respondent party out of time. 22 The evidence also establishes that searches of the National Native Title Tribunal indicate that no determination of native title has been made over the Land. These searches also indicate that no native title determination application has been filed over the Land. To date, there has been no entry on the Register of Native Title Claims with regard to the Land. 23 The evidence establishes that: (a) no Indigenous respondent party has joined to the proceedings; (b) no Indigenous respondent party has filed evidence of the existence of native title in the relevant land; (c) there is no native title determination over the land; and (d) no claimant application has ever been made over the land. 24 Relying upon these matters, the Land Council submitted that the Court was entitled to be satisfied that there is no evidence of any persons maintaining a native title interest in the Land and that it had discharged its onus of establishing that native title does not exist in the Land. However, the Land Council and the respondents all pointed out that an absence of responses to notifications under s 66 of the NT Act is not determinative of the question as to whether the Court can be satisfied that native title does not exist in the Land: Mace at [116]. 25 The Land Council relied upon other evidence which it submitted would satisfy the Court that there is no evidence of any persons maintaining a native title interest in the Land. The Land Council made a number of submissions in this regard. 26 First, the Land Council submitted that there is no evidence that the Land has been used by Indigenous people for cultural purposes. In support of this submission, the Land Council relied upon evidence as follows: (a) Ms Veronica Walford has lived in Armidale since 1964 and identifies as an Anaiwan woman. She has been actively involved in cultural activities with the Armidale Aboriginal community. Ms Walford is aware of the Land and in her lifetime has never been aware of it as having any cultural or traditional significance; (b) Mr Clive Ahoy has lived in Armidale for the majority of his life since 1962. He identifies as a Gumbaynggirr and Thunggutti man. He has had extensive involvement with the Aboriginal community in Armidale. From his own knowledge and inquiries, he gave evidence that the Land has never been used for significant cultural or traditional purposes; (c) Mr Benjamin Scott is the founder and Managing Director of Uniplan, which purchased parcels opposite the Land in 2001. Mr Scott moved to Armidale in 1999. He has never observed any Aboriginal person using the Land for any cultural or traditional purpose. 27 Second, the Land Council submitted that there was no evidence to indicate that the Land has sites of significance on it. Ms Walford has never been aware of any cultural or traditional artefacts, paintings, burials or any other culturally significant sites on the Land. Mr Ahoy has made specific inquiries with Indigenous elders in the Armidale community and they confirmed to him that the Land had no cultural or traditional significance and that it was not used, and never has been used, for cultural purposes. Mr Scott has never been aware of anyone asserting that the Land was culturally significant. From his daily observations, he is not aware of any features on the Land, such as culturally modified trees, stone artefacts or the like. 28 Third, the Land Council submitted that there is no evidence to indicate that any person had claimed a native title interest in the Land. Ms Walford's evidence is that her tribe does not claim native title in the Land and she is not aware of anyone who she has spoken to who claims native title in the Land. Mr Ahoy is not aware of any native title claims over the Land. His tribe does not claim native title over the Land, and he is not aware from anyone he has spoken to that anyone else claims native title over the Land. Mr Scott states that he has never been aware of anyone claiming a traditional right in the Land. 29 Fourth, the Land Council submitted that the Land is in an industrial part of Armidale and is used itself at times for industrial purposes. The Land once had a milk factory opposite it, was used for grazing before it was rezoned as industrial land, and now heavy industrial business operates around it. Mr Ahoy obtained a valuation of the Land that identifies it as being zoned as industrial land, and the land surrounding the Land is used largely for industrial purposes. 30 The Land is surrounded by parcels that are used and have been used for a lengthy amount of time for industrial purposes. Mr Ahoy's evidence was that Uniplan occupies a parcel adjacent to the Land, and that over the years the Land Council has allowed Uniplan to use the Land for a licence fee. Mr Scott states that Uniplan has occupied and operates its manufacturing outlet on the land it purchased, and that Uniplan has at times over the last 13 years used a fenced part of the Land for storing materials, parking, truck manoeuvring and forklift access. 31 The Land Council did not submit that the uses of the Land in these ways suggested that any native title in the Land had been extinguished. Rather, the force of its submission was that there was an absence of evidence that the Land had been used for traditional purposes or had any customary significance to local Indigenous populations. 32 The existence or otherwise of native title in relation to land does not depend on the land being of "significance" to Aboriginal people: Mace at [181]; Wagonga at [358]. The criteria established by s 223 of the NT Act by which to determine the existence of native title are the possession of rights or interests under traditional laws and customs acknowledged and observed by the relevant Aboriginal people where those people, by those traditional laws and customs, have a connection with the relevant land or waters: Wagonga at [358]. 33 The nature of the evidence adduced and the submissions made by the Land Council in the present case seek to establish the negative proposition. The Land Council's evidence includes that from persons with knowledge of cultural and traditional uses of the Land to demonstrate a lack of connection to the Land under traditional laws or customs for the purpose of s 233 of the NT Act. 34 There is no evidence to the contrary. NTSCORP is funded under s 203FE(1) of the NT Act for the purpose of performing the functions of a native title representative body for New South Wales and the Australian Capital Territory. NTSCORP submitted that it had performed its notification function by attempting to notify any persons with interests in the Land, and there were none other than the Land Council. NTSCORP has not yet produced an anthropological report identifying persons who may hold native title in the Land or evidencing any relevant laws and customs and connection to the Land, because the anthropological research undertaken by NTSCORP has been prioritised elsewhere. 35 NTSCORP accepted that the Land Council had adduced evidence of various matters that are relevant to the determination that no native title had been claimed or cannot be proved. However, it cautioned that the evidence did not preclude a positive determination being made that native title did exist in relation to the Land or in nearby lands. NTSCORP submitted that the evidence adduced by the Land Council did not enable the Court to make a positive determination of native title in relation to the Land or nearby lands, or as to the existence and content of any laws and customs acknowledged and observed in relation to the Land by a particular community or group of Aboriginal peoples at sovereignty, or whether by such laws and customs a community or group had a connection with the Land. NTSCORP contended that in making findings regarding the evidence before it and in determining the application, the Court should, as far as possible, not prejudice any potential future application for a positive determination of native title in relation to nearby lands. 36 Ultimately, NTSCORP submitted that, in determining the Land Council's application, the Court should go no further in making findings on the evidence before the Court than is necessary to determine whether to make the orders sought. It further submitted that even in the case where an application is unopposed under s 86G of the NT Act, the Court must consider in the exercise of its power whether it is "appropriate" to make a determination that no native title exists, even if a non-claimant applicant has established on the balance of probabilities that no native title exists. 37 The Land Council agreed with NTSCORP's submissions that any orders and findings made by the Court need only be directed to the Land, and should not be such as to infect any findings or determinations the Court might make in the future in respect of traditional laws and customs, or rights and interests, relevant to nearby land. 38 Having regard to all of the evidence and the helpful submissions of the parties, I am satisfied on the balance of probabilities that no native title claims exist in relation to the Land (and to that Land alone). In coming to this conclusion, I have had regard to the absence of any claims having been made in relation to the Land in the past and the absence of any such claim now having been made despite compliance with the regime for notification required by the NT Act. However, I have not regarded these matters as determinative. I have also been persuaded to the conclusion that I have reached based on the evidence of Ms Walford, Mr Ahoy and Mr Scott which I have summarised above. 39 There are no factors which have emerged in the evidence that would render it otherwise inappropriate for the negative determination to be made. DISPOSITION 40 I will make a determination that there is no native title in relation to the Land. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff. Associate: Dated: 6 February 2024