In this matter, Griffiths J ordered that native title does not exist in relation to 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.
[1] The applicant sought a determination pursuant to section 13(1)(a) and the related provision in section 61 of the Native Title Act (Cth) (NTA) 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.
[2] The determination is sought in relation 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 section 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.
[4] The applicant is the freehold title holder over the Land which comprises Parramatta Gaol and some surrounding lands. The land has an approximate area of 63,200m2.
[5] On or about 24 February 2012, the NSW Aboriginal Land Council (NSWALC) made a claim to Parramatta gaol and the surrounding lands pursuant to section 36 of the ALR Act. The claim was refused by the Minister Administering the Crown Lands Act on or about 28 June 2013. [6] The NSWALC appealed against the refusal to the NSW and Environment Court pursuant to section 36(6) of the ALR Act.
[7] On 12 December 2014 the Land and Environment Court allowed the appeal. The Minister was ordered to transfer the Land to the applicant in fee simple within 24 months, or on some other timeframe as agreed between the parties.
[8] The Court was advised that the material before it and the purpose of the application is to enable the applicant to deal with the Land to the benefit of its members and other Aboriginal people in its area.
Procedural matters
[9] The notification period ended on 15 February 2017. [10] In June 2017, NTSCORP Limited, the State native title representative body, and the Attorney-General of NSW, filed notices under s 86G of the NTA that they 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 NTA without holding a hearing.
[13] In his affidavit, Mr Cavanagh, CEO of the Deerubbin Land Council, deposed that the land was previously within the external boundaries of the claim made by 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). The Deerubbin Land Council had opposed the discontinuance, submitting 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. The Court allowed the applicant in that matter to discontinue the Darug Tribunal claim in Gale No 1, but placed conditions on the commencement of any further native title claim on behalf of the Darug People.
[14] A second native title claim was filed on behalf of the Darug People in relation to a single parcel of land in the Lower Portland area of NSW and was heard and determined in 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. On 7 September 2004 the Court determined that there was no native title in relation to the land the subject of that claim.
The applicant argued that the decisions in Gale No 1 & 2 make 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’ (at [32]). No application for a determination of native title was filed in response to the public notice of the non-claimant application given under s 66 of the NTA. The Land Council further submitted that any native title had been extinguished by previous exclusive possession acts attributable to the State of NSW, including the grants of freehold title and the erection of public works – the Parramatta Gaol, water mill and Lunatic Asylum.
[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 provided reliable evidence that any native title in relation to the land had been extinguished. The State submitted that the evidence 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 (citing Eden Local Aboriginal Land Council v NTSCORP Ltd [2010] FCA 745 per Jacobson J) and should be disregarded by the Court.
[45]- [47] Griffiths J found that the formal notice requirements of the application were satisfied.
Proof of non-claimant applications
[48] There are two bases that the Court can be satisfied that native title does not exists in relation to land the subject of a non-claimant application:
native title does not presently exist because it is not claimed or cannot be proved by a native title claimant. Gandangara Local Aboriginal Land Council v Minister for Land for the State of NSW [2011] FCA 383 per Perram J
Native title has been extinguished by prior acts of the Crown. Gandangara Local Aboriginal Land Council v Attorney General of NSW [2013] FCA 646 per Griffiths J. [49] The non-claimant applicant must prove on the balance of probabilities that no native title exists in relation to the land the subject of the application.
[54] The Court accepted 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 as to whether 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.’
Griffiths J stated at [52] that where those criteria are met, 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 Local Aboriginal Land Council v Minister for Lands for NSW & Anor (No. 2) [2008] FCA 1929 at [46] citing Commonwealth v Clifton [2007] FCAFC 190 at [59])’.
[54] The Court is satisfied that the remaining evidence establishes:
that notice has been given and no native title claimants have come forward
the NNTT report shows that there are no overlaps with any other claims
[55] Griffiths J made the orders as sought by the applicant.