Perry J
Perry J ordered that a determination be made that no native title exists as any native title in the land has been extinguished in whole by a 1998 appropriation.
Background
The Tweed Byron Local Aboriginal Land Council (the Land Council) is the registered proprietor of the estate in fee simple as a result of a transfer of the land under s 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). A consequence of the transfer under this section is that the Land Council is prevented from selling, exchanging, leasing, disposing of, mortgaging or otherwise dealing in any other way the land unless it is the subject of a native title determination as per ss 36(9) and 42(1) of the ALRA. The Land Council seeks a determination that no native title exists over two parcels of land in the Northern Rivers area of New South Wales.
On 6 September 2018, the Court made orders to join nine individuals who claimed to hold native title as respondents. All but one of these individuals then advised the applicant that they did not wish to make submissions in the proceedings and intended to withdraw as parties. No communication has been received from the ninth individual. Four of the individuals then withdrew as parties. The Court was satisfied based on the evidence and the fact that none of the respondents filed submissions or appeared at the hearing that the remaining parties did not oppose the orders sought.
Extinguishment
The question to be determined was whether the vesting of an estate in fee simple in a State statutory body in 1988 under the Public Works Act 1912 (NSW) validly extinguished any native title in the land.
At [14] the Court sets out the conditions for making a determination that no native title exists, as they were explained by Jagot J in Mudgee Local Aboriginal Land Council v Attorney-General of NSW [2013] FCA 668:
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
an order in, or consistent with, the terms sought by the applicant is within the Court’s power.
One of the ways in which criteria 2 above may be satisfied is that native title has been extinguished by prior acts of the Crown. The Court went on provide the an exert of the submissions of the Attorney-General at [22]:
At common law, native title will be extinguished completely by the valid grant of an interest conferring exclusive possession of the land, such as a grant of fee simple: see, e.g. Western Australia v Ward (2002) 213 CLR 1 (Ward) at [249]. It will be partially extinguished by the valid grant of a lesser interest, to the extent of inconsistency of that interest: see, e.g. Ward at [78], [192]-[194].
In addition, under the Native Title Act 1993 (Cth) (NTA), native title is extinguished by an act that is a “previous exclusive possession act” (PEPA) under Division 2B of Part 2. An act will be a PEPA if it is (1) valid, (2) took place before 23 December 1996, (3) consisted of the grant or vesting of one of the interests specified in s 23B(2)(c) - which includes the grant of a freehold state, and (4) does not attract one of the exceptions in sub-paragraphs (9)-(10) (s 23B). One such exception (in s 23B(9C)) is that an act will not be a PEPA if it is the grant or vesting of an interest in relation to waters or land in the Crown or a statutory authority unless, relevantly, (a) “apart from this Act, the grant or vesting extinguishes native title in relation to the land or water”. A PEPA done by the Commonwealth or NSW will extinguish native title (NTA, s 23C, 23E; Native Title (New South Wales) Act 1994 (NSW) (NTNSWA), s 20). The NTA also validates certain invalid acts that took place before 1 July 1993 as “past acts” (see NTA, s 228).
The Court then provides at [23] 'the alleged extinguishing act was the appropriation of the land in 1988 under s 42 of the Public Works Act for the purposes of the Tourism Commission Act 1984 (NSW) which vested the land in the Tourism Commission of New South Wales.'
The alleged extinguishing act concerned the vesting of an estate in fee simple in a State statutory authority that as per the NTA and NTNSWA would be a PEPA unless 'apart from' the NTA the grant or vesting of the fee simple estate extinguished native title in relation to the land.
Whether native title was extinguished by a means other than than the NTA depends on whether the relevant sections of the Public Works Act are inconsistent with s 10(1) of the Racial Discrimination Act for the purpose of s 109 of the Constitution in so far as it purports to extinguish native title [at 29].
Her Honour at [31] agreed with the parties that the clear and plain intention of the Parliament in enacting the relevant sections of the Public Works Act was to vest land in a state Statutory Authority in fee simple unfettered by any other right or interest, including any native title rights or interests. Perry J agreed with both parties that there was no discrimination on the ground of race against the holders of native title in the vesting of the estate in fee simple in the Tourism Commission and therefore the vesting of the estate extinguished any native title in that land as confirmed by s 20(1) of the NTNSWA read in conjunction with ss 23B(2) and (9C) of the NTA. The parties differed on whether the native title holders were entitled to compensation however as this was not directly in issue in the proceedings, Her Honour did not reach a view on the matter.
As the appropriation does not fall under the exception in s23B(9C), it is a previous exclusive possession act which extinguishes native title.
As a determination has now been made that no native title exists, the Land Council will be able to deal with the land, unrestricted by ss 36(9) and 42(1) of the ALRA.