This matter concerned a non-claimant application made by the Worimi Local Aboriginal Land Council in relation to Lot 264 on DP48801 at Clarence Town in New South Wales. The lot was previously used as a quarry by the former Walarobba Shire Council and then as a landfill site by the Dungog Shire Council. As a result of these previous uses, the applicant was concerned that contaminants from Lot 264 may be carried by stormwater into a neighbour’s dam or may be leaching into groundwater. The Environmental Protection Agency (EPA) had become involved. Dungog Shire Council had resolved to seek to purchase the land from the applicant to enable it to carry out expensive remediation works. The applicant was concerned about the potential liability that the land posed and wished to be able to sell the land to the Council. The applicant must obtain a determination that native title does not exist in relation to the lot to satisfy s 42 of the Aboriginal Land Rights Act and in order to sell the lot. The application was opposed by the second respondent, Ms Carol Bissett.
CEO of the Land Council, Mr Smith deposed that members at a meeting held on 27 February 2018 resolved to sell Lot 264 to Dungog Shire Council: ‘while all land is culturally significant; we do not consider this land is of any particular cultural significance. The members support Worimi LALC's proceedings seeking a determination that there is no native title in relation to Lot 264 DP48801.’
There applicant submitted that there was an evidentiary basis for finding that any native title previously existing in relation to the land and been extinguished by one or more previous exclusive possession acts within the meaning of s 23B of the Native Title Act 1993 (Cth) (NTA) attributable to the State of New South Wales, namely certain public works. The applicant submitted that the filed evidence included material capable of establishing that Lot 264 had been the subject of the valid construction or establishment of public works, being the quarrying works previously conducted on Lot 264 by Walarobba Shire Council pursuant to a permissive occupancy issued to it for that purpose. The applicant relied on s 251D NTA to overcome a lack of evidence about the nature and extent of the quarrying.
The Attorney General submitted that categorisation of the quarry as a Category A past act (pursuant to s 229 NTA) would have the effect that native title was extinguished pursuant to s 15 NTA and s 8 of the Native Title (New South Wales) Act.
The applicant submitted in the alternative that native title is not claimed by or cannot be proved by a native title claimant. The applicant submitted that no individual or claim group asserted a claim to native title in relation to Lot 264. Nor had any respondent put forward cogent evidence to establish that ‘native title may well exist’.
Robertson J was satisfied that no other claim group or groups assert a claim to hold native title to the land, which supported an inference of an absence of native title. On this basis, it was not necessary for the Court to consider other grounds for granting the application. His Honour did not make a finding on whether or not native title had been extinguished, assuming it had existed, given the difficulties of proof and the necessity to draw an inference in the absence of clear evidence as to the status of that part of Lot 264 where there was no quarry.
Robertson J did consider the quarry on Lot 264 to constitute ‘major earthworks’ within the meaning of s 253 NTA. That definition feeds into the definition of “public work” in the same section and, from there, to s 229(4). In Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923 at [137] Olney J said: A gravel pit is clearly not a ‘major earthwork’ for the purposes of the definition of ‘public work’ in the NTA. Robertson J stated at [106]: ‘Although this dictum does not seem to have been the subject of direct consideration in the later cases, Banjima, CG (Deceased) and Graham, to which the parties referred, those cases have proceeded on a different basis and without referring to Wandarang on this point. The better view is that it is appropriate not to treat what Olney J said as a proposition of law but as a conclusion of fact in respect of the evidence in that case which considered the status of 48 gravel pits associated with the Nathan River Road…In my opinion these gravel pits are factually distinct from the much deeper and more substantial quarry on Lot 264 so as to make the conclusion of Olney J inapplicable.’
At [107]: ‘My potential difficulty, and why I prefer to express no concluded view on the extinguishment question, is as to whether the quarry, the major earthwork, is over the entirety of Lot 264, some 2.7 hectares in total. I infer from AWS6 to Mr Smith’s 4 May 2017 affidavit that it is not. This is not inconsistent with the evidence that some of the quarrying has been extensive, as plainly there can be extensive quarrying on only part of a parcel of land. As to s 251D NTA, it provides that a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work. In the absence of more direct evidence, I would have hesitated to find that the unquarried area shown on AWS6 was as a matter of fact necessary for or incidental to the operation of the work, being the quarry.’
Robertson J made orders in the form requested by the applicant.