This matter concerned a non-claimant application brought by the Darkinjung Local Aboriginal Land Council seeking a determination under s 61(1) of the Native Title Act 1993 (Cth) (NTA) that native title does not exist in relation to the land and waters in 15 areas on the NSW Central Coast: Lot 1 DP1192889; Lot 16 DP1210468; Lot 196 DP1064536; Lot 197 DP1064536; Lot 198 DP1064536; Lot l DP1122946; Lot 206 DP1117900; Lot 207 DP1117900; Lot 10 DP1180616; Lot 7313 DP1165007; Lot 188 DP48813; Lot 189 DP48813; Lot 190 DP1061009; Lot 3 DP1156997; and Lots 1001, 1002 and 1003 DP1239890. The Land is approximately 2.47 square kilometres. Both the Attorney-General of New South Wales and NTSCORP did not oppose the application. All parties consented to the application being determined on the papers without a hearing.
The determination was sought because of restrictions imposed on the applicant in dealing with the land by ss 36(9) and 42 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). 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 ALRA 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.
An ‘overlap analysis report’ produced by the National Native Title Tribunal (NNTT) indicated that there were two overlaps between the application and other native title applications or determinations:
between Lot 1 DP1192889 and native title determination NND2002/003; and
between Lot 16 DP1210468 and native title determination application NN2017/012.
Griffiths J accepted the evidence that both overlaps had been resolved. The first was technical in nature and likely the result of the land parcels having been spatially upgraded, and the second was resolved by the filing of an amended application in Darkinjung #4 deleting Lot 16 in Deposited Plan 1210468.
The applicant submitted that no native title claimant applications or notices of intention to become a party to assert that native title exists in respect of any part of the land were filed during or subsequent to the s 66 NTA notification period. The applicant submitted that there are no previous approved determinations of native title in relation to any part of the land and that the Court may be satisfied that native title does not exist in relation to any part of the land because native title is not claimed by, or cannot be proven by, a native title claimant, citing Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929 (Worimi) at [46]; Commonwealth of Australia v Clifton [2007] FCAFC 190 and Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067 at [51] and [53]. In addition, the applicant submitted that the formal requirements of s 24FC NTA have been satisfied and consequently the land is subject to section 24FA protection.
The applicant submitted that although it is not necessary to consider evidence of extinguishment given the matters set out above, there is also evidence to establish that native title in Areas 2-14 inclusive has been extinguished by previous exclusive possession acts attributable to the State of New South Wales: see [36]. However, the applicant submitted that it is not necessary for the Court or parties to resolve this question in these circumstances where the Court may be satisfied that native title does not exist in relation to any part of the land as it is not claimed by a native title claimant, citing Worimi.
NTSCORP submitted that it is not logical for the Court to determine a non-claimant application when an act in land ‘subject to section 24FA protection’ extinguishes native title. NTSCORP submitted that the dissenting opinion of Reeves J expressed at [88] to [113] in CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67 is correct; namely, contrary to [39] of the plurality’s judgment, a non-claimant application is not an application which ‘necessarily claims’ that native title does not exist, rather, the purpose of non-claimant applications is to secure s 24FA protection under Subdivision F, of Division 3, of Part 2 of the NTA. In general, it is not necessary to, and the Court should not, determine non-claimant applications once land is subject to s 24FA protection. However, the ALRA is anomalous in requiring determinations of native title, either positive or negative, before Aboriginal Land Councils can ‘deal with land’. In that respect, the Court has the power to determine non-claimant applications made by Aboriginal Land Councils for this purpose.
Griffiths J was satisfied that the procedural matters have been established and native title does not exist in the land. His Honour considered it unnecessary to determine the alternative basis relied upon by the applicant, namely that any native title has been extinguished and unnecessary to address and determine NTSCORP’s submissions relating to Badimia People as a result. Griffiths J noted that in any event, the dissenting of opinion of Reeves J in that case is not binding, but that of the plurality is. The Court was satisfied that the orders sought are within its powers and that it is appropriate to make the determination in the terms sought by the applicant.