Native Title Year in Review 2023-2024

What you need to know

• A non-claimant application has been unsuccessful due to general law invalidity. 
• The Court in Dungog Shire Council v Attorney General of New South Wales [2024] FCA 166 found that native title had not been extinguished by a 1823 freehold grant because there was no evidence that certain procedural steps required for a valid grant had been taken. This meant the 1823 grant was invalid at general law and could not affect native title.
• All other non-claimant applications heard over the last 12 months successfully obtained a determination that native title does not exist, either on grounds of extinguishing tenure or because the applicant had proven the negative proposition that there was no evidence that native title exists.

What you need to do

• Although the Dungog grant was an unusual one, the decision serves as a reminder that problems can exist in tenure histories and proponents should satisfy themselves as best as possible about the validity of historical grants before relying on them as evidence of extinguishment.
• Remember that even non-contested non-claimant applications must be proven on the balance of probabilities.  

Dungog: A cautionary tale 

The decision in Dungog Shire Council v Attorney General of New South Wales [2024] FCA 166 (Dungog) reminds us of the need to confirm that historical grants of tenure are valid at general law before relying on them as evidence of the extinguishment of native title. 

A non-claimant application was brought by Dungog Shire Council seeking a determination that native title does not exist in relation to a sportsground reserve in a town within the Hunter Valley, NSW. 

The land had originally been part of approximately 2000 acres granted by Governor Brisbane to Mr James Phillips in 1823. It was later purchased by Queen Victoria and in 1885 declared a park.

The Council argued that native title had been extinguished to the sportsground by the 1823 grant, which it said was the grant or vesting of a freehold estate that extinguished native title at common law.

As the party seeking a determination that native title does not exist, the Council had the burden of proving on the balance of probabilities that native title did not exist.

The non-claimant application was challenged by Mr Scott Franks and the Representative Body on several grounds, including that the 1823 grant was not valid at general law and could not therefore extinguish native title. 

The 1823 grant should have had the King's approval before it occurred

The Governor's 1821 Commission and Instructions from King George IV allowed him to grant Mr James Phillips no more than 200 acres. Any more than that needed "approbation" (approval) from the King.  

Because the 1823 grant was for 2090 acres, the parties were required to demonstrate that approbation had been given, or otherwise that it was reasonable to assume that approbation had been given.  

Whilst there was significant evidence presented in the case regarding the circumstances of the 1823 grant, the Court concluded that there was not sufficient evidence to demonstrate that approbation had been granted, nor was it possible on the facts to assume it had been.  

This was even though the 1823 grant was expressed as being immediately operative ("have Given and Granted, and by these Presents do Give and Grant”) and would therefore indicate the conveyance of an estate in fee simple.

Presumption of regularity did not apply

Furthermore, the Court held that the presumption of regularity did not apply.  

The presumption of regularity was considered in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, stating: 

Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.  

The Court in Dungog concluded that the approbation of the King could not have been said to be merely a formality where all other requirements were met.  Accordingly, the presumption of regularity was not applicable, as it "is not a panacea for all evidentiary absences". 

Ultimately, the Court decided that the 1823 grant was not valid at general law because it was beyond the power of Governor Brisbane to make it. It therefore had no effect on native title.  

The non-claimant application was dismissed.

Other non-claimant applications were successful 

All other non-claimant applications heard over the last 12 months successfully obtained a determination that native title does not exist.

The Courts in each case noted that an applicant can establish that native title does not exist on two bases:

• First, on the basis that any native title that did exist has been extinguished; or
• Second, on the basis that no native title exists because it is either not claimed or cannot be proved by a native title claimant.

The principles governing the making of non-claimant applications were laid down by the Full Federal Court in 2019 in Mace v State of Queensland (2019) 375 ALR 717 and summarised by the Federal Court in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113. They include: 

• Courts look at the nature of the land and the tenure involved, the presence or absence of any present or previous native title claims and the nature and content of those claims, and any evidence adduced by the parties.
• The principal evidence likely to impede the grant of a negative determination is evidence of an assertion of native title which is objectively arguable, not evidence of the potential for the assertion of native title. The quality of such evidence, rather than its extent, will be determinative.
• The reason for a non-claimant application does not govern the Court’s approach to the exercise of the power.
• Whether there is a contradictor to a non-claimant application or not, the legal question remains the same: has the applicant discharged its burden of proof that no native title exists in the area the subject of the non-claimant application.

Queensland applications were seeking upgraded tenure

Three Queensland applications (South Terrick Pty Ltd ATF the South Terrick Trust v State of Queensland [2023] FCA 646; Russell Estates Pty Ltd v State Minister for the State of Queensland [2023] FCA 1588; and Arnaboldi v State of Queensland [2023] FCA 788) were made by leaseholders not on the basis of extinguishing tenure, but because native title could not be proven to exist. They made non-claimant applications because the State required a negative determination (or an ILUA) before upgrading their tenure. We have noticed an increase in non-claimant applications in Queensland since 2021 because of this requirement.

In each case the applicants were successful in their arguments that native title could not be proven and obtained determinations that native title did not exist.  

The NSW applications were made by Local Aboriginal Land Councils over freehold land held by them

Four NSW applications were made by Local Aboriginal Land Councils to be able to sell freehold land held by them under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act).

Any transfer of lands to an Aboriginal Land Council for an estate in fee simple is subject to any native title rights and interests existing in relation to the lands immediately before the transfer (section 36(9) ALR Act) and cannot be sold unless the land is the subject of an approved determination of native title (section 42(1) ALR Act). This provision has triggered over 60 non-claimant applications in NSW over the last 25 years.

Three of the non-claimant applications were fairly standard in that context and relied upon historical extinguishment of native title. Interesting findings included:

• That the appropriation of a Crown road for the purpose of the Murrumbidgee Irrigation Act 1910 (NSW) under the Public Works Act 1900 (NSW) vested a freehold estate in the Minister that extinguished native title at common law (Griffith Local Aboriginal Land Council v Attorney General of New South Wales [2023] FCA 457); and
• That the grant of special leases for various purposes extinguished native title as "Scheduled Interests" under the Native Title Act. The Court considered evidence about each lease before making its findings about extinguishment in the same way it would have done had extinguishment submissions been made by a respondent to a native title claim (Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales [2023] FCA 813). 

The applicant in Armidale Local Aboriginal Land Council v Attorney General of New South Wales [2024] FCA 50, on the other hand, contended that native title did not exist because it has not been claimed or could not be proven by a native title claimant. It did not have historical extinguishing tenure to rely upon. The issue for the Court was therefore like the Queensland cases referred to above.  

The Court noted that the Land Council's evidence had to establish a negative proposition. The Land Council provided evidence from persons with knowledge of cultural and traditional uses of the land to demonstrate a lack of connection to the land under traditional laws or customs for the purpose of the Native Title Act.  

The Court was careful to clearly limit its findings about the absence of native title to the land in question to avoid affecting any potential claims to nearby lands.  

Authors: Anna Seddon, Senior Associate; Leonie Flynn, Expertise Counsel.