Perry J ordered that native title does not exist in the land described as the entirety of each of Lots 1233, 1243, and 1257 in Deposited Plan 753135 and located in the Local Government Area of Bland, Parish of Wyalong, County of Gipps, State of New South Wales.
The applicant, the West Wyalong Local Aboriginal Land Council, is the Local Aboriginal Land Council under the Aboriginal Land Rights Act 1983 (NSW) (the ALR Act) for the West Wyalong Local Aboriginal Land Council Area. By a non-claimant application, the Land Council sought an approved determination and declaration under s 61(1) of the Native Title Act 1993 (Cth) (NTA) that no native title exists over the land the subject of the application. The application was unopposed by the respondent parties, the Attorney-General of New South Wales and NTSCORP Ltd.
The application area comprises three parcels of land being Lots 1233, 1243, and 1257 in Deposited Plan 753135 in the Parish of Wyalong, County of Gipps, in the State of New South Wales. The application area falls within the Land Council area and was transferred to the Land Council in fee simple on 25 June 2015 pursuant to a land claim under s 36 of the ALR Act. The Land Council, as the holder of an estate in fee simple over the application area, has standing to bring the application under s 61(1) NTA because it is the holder of a non-native title interest in relation to the whole of the area in respect of which the determination is sought.
The application was intended to enable the Land Council to deal with the application area, as approaches have been made by third parties to purchase that area. The Land Council wishes to increase its economic base through land claims and targeted acquisition, management and disposal strategies in approving the West Wyalong Local Aboriginal Land Council Community, Land and Business Plan dated June 2016 (the Plan). The Plan was approved by the members of the Land Council on 4 July 2016. However, subject to s 42(2) of the ALR Act, the Land Council is prevented by operation of ss 36(9) and 42(1) of the ALR Act from selling, exchanging, leasing, disposing of, mortgaging or otherwise dealing with the application area unless it is the subject of an approved determination of native title within the meaning of the NTA: see Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3; (2010) 181 FCR 320 (Worimi) at [9]; see also the restrictions stated on the certificates of title for the three lots comprising the application area.
Perry J was satisfied that the following conditions have been met:
the application has been advertised in accordance with s 66 of the NTA;
the application area is not covered by an application for a determination that native title does exist;
the prescribed notification period under s 66(10)(c) has come to an end and there are no persons who oppose the application; and
an order in, or consistent with, the terms sought by the applicant is within the Court’s power.
In addition, her Honour was satisfied that the operation and effect of the relevant provisions of the ALR Act make it clear that the issue sought to be raised by this application is not a moot one and must be determined by this Court: see by analogy e.g. Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales [2012] FCA 792 at [25] (Perram J). As Jagot J observed in Jerringa Local Aboriginal Land Council v Attorney-General of the State of NSW [2013] FCA 562 at [2], the interactions between the ALR Act and the NT Act mean that land councils have no option other than to seek an approved determination of native title in the Federal Court.
The remaining question for determination was whether the Court is satisfied on the evidence that the negative proposition that native title does not exist has been established on the balance of probabilities. In this regard, Perry J noted that the Court must bear in mind that a determination that no native title exists has force and effect as against the whole world and, by virtue of s 61(1) NTA, may be varied relevantly only upon an application by the Commonwealth or relevant State Minister or the Native Title Registrar upon the limited grounds prescribed by s 13(5) NTA.
Her Honour noted that the onus of proving that no native title exists in the application area lies upon the Land Council. In this regard, in upholding the approach of the primary judge in deciding whether the onus of proof had been discharged, the Full Court held in Worimi at [80] that:
It is obviously a difficult task to prove a negative proposition: Darling Island Stevedoring & Light Ridge Company Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635 at 641-642. It may be established by direct evidence, circumstantial evidence, by inference or by a combination of these things. It must nevertheless be more than a scintilla... It may be determined having regard to the power of the respective parties to adduce relevant evidence, and the extent to which they do so. In this matter, it was mainly a combination of the direct evidence of the Aboriginal witnesses and the inference drawn from the absence of a cogent assertion of native title by a competent application under s 61 NTA, after the notification process, which supported the conclusion of the primary judge.
Perry J noted that in this case the Court had the benefit of the direct and uncontradicted evidence of local indigenous witnesses (Leeanne Hampton, CEO of the Land Council; Louise Anne Davis, a board member of the Land Council; and Marlene Lynette Collins, a member of the Land Council), including two elders who are charged with protecting and maintaining cultural heritage, and are regarded as knowledgeable about the cultural and traditional uses of the application area.
At [23]: Ms Hampton has lived in the area for 42 years and gives evidence of her family’s long ancestral connection to the West Wyalong area, attests to her belief that the land is not culturally significant or important under the traditional laws or customs of the Wiradjuri People – a belief which is based on oral stories told to her by family members, her research, and her long-standing membership of the Land Council. While the absence of sites of significance does not conclusively establish that native title does not exist, it is highly significant that neither Ms Hampton nor the local elders who gave evidence identify themselves or any other person as having any connection to the application area under traditional laws and customs. Nor is there any evidence of occupation or use of the land under traditional laws and customs. The evidence also establishes that the local Aboriginal Community is aware of the application, has resolved to support it, does not believe that a claimant application is likely to be made in respect of the application area, and does not believe that the application area is of cultural significance. Finally, there is no evidence of any other person asserting native title rights and interests in the land, including in response to publication of the native title determination application by the Registrar.
As both respondents do not oppose the orders in, or consistent with, the terms sought by the applicant, the power to make the order without a hearing is enlivened under s 86G NTA. Perry J was satisfied that the Court has power to make an order in, or consistent with, the terms sought by the applicant and that the applicant has established on the balance of probabilities that no native title exists in the application area and made orders accordingly.