An approved determination of native title is a determination made by the court under Part 3 of the NTA in accordance with s 225 and under s 13, 'of whether or not native title exists in relation to an area for which there is no approved determination of native title' [2].

The Tweed Byron Local ALC submitted that the vesting of the land in a State statutory body (in this case, the NSW Tourism Commission) under the Public Works Act 1912 (NSW) (the Public Works Act) had validly extinguished any native title [3].

The position of the parties

Neither the Attorney General of New South Wales nor NTSCORP Limited opposed the application [6], [7].

The Attorney General was party to the application as the Minister responsible for the administration of the NTA (the State Minister) under s 84(4) [7]. The State Minister, acting on behalf of the community generally, agreed that native title rights in the land did not exist but on different reasoning [7]-[8].

On 6 September 2018, nine individuals who claimed to hold native title in the land were joined as respondents [9]. Each of them intended to oppose the non-claimant application [9]. However, all (bar one who made no further communication) advised the Tweed Byron Local ALC that they had no intention of making submissions and would withdraw from the proceedings [9].

Four of these individuals expressly provided notice that they withdrew as parties to the proceedings [9]. Those who did not were deemed by the Court to not oppose the orders sought as they neither made written submissions nor did they appear at the hearing to press any alleged native title interests [9]. Despite this, the State Minister and NTSCORP Limited as well as the Court agreed it would be safest to not proceed under s 86G(1) of the NTA which allows the Court to 'make a determination without holding or completing a hearing where satisfied that the application is unopposed as defined in s 86G(2)' [9].

Prescribed conditions for making a determination were satisfied

The Court needed to be satisfied that four prescribed conditions were met before determining that no native title exists:

1. the application must have been advertised in accordance with s 66 of the NTA;
2. the application area must not be covered by an application for a determination that native title exists;
3. the prescribed notification period under s 66(10)(c) must have come to an end; and
4. an order in, or consistent with, the terms sought by the applicant is within the Court's power [14].

The first three requirements were satisfied as evidence was provided establishing that the National Native Title Tribunal (NNTT) Registrar had provided adequate and timely notice to all relevant persons and bodies as required by s 66 of the NTA and reg 6(1) of the Native Title (Notices) Determination 2011 (No 1)[15].

The fourth requirement was satisfied as s 13(1) of the NTA allows an application to be made to the court for a determination of native title in relation to an area for which there is no approved determination of native title in existence at the time [16]. Also, the court has the power to make a determination that native title does not exist [16]. The court made it clear that the interactions between the ALR and NTA provide that an approved determination is necessary for land councils in these circumstances [17].

Native title did not exist in the determination area

The Tweed Byron Local ALC, as applicant, had the onus of proving it was more likely than not that no native title exists in the land [18]. The basis for this was that native title had been extinguished by prior acts of the Crown [21].

The Court outlined the principles by which extinguishment is determined both at common law and in the NTA at [22]. Relevantly, under ss 23C and 23E of the NTA, as well as s 20 of the Native Title (New South Wales) Act 1994 (NSW), a previous exclusive possession act (PEPA) done by the Commonwealth or NSW, will extinguish native title [22].

Three elements must be satisfied for an act to be a PEPA pursuant to the NTA. The act must have:

1. been valid: s 23B(2)(a);
2. taken place on or before 23 December 1996: s 23B(2)(b); and
3. granted or vested an interest or an estate as set out in s 23B(2)(c) and (4) does not attract one of the exceptions in sub-paragraphs (9)-(10) [22].

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 NSW Tourism Commission [23]. This was shown by an Appropriation Notice that was published in the NSW Government Gazette No 142 on 9 September 1988 [24].

Due to the vesting of the land in a State statutory authority, at issue was the exception in s 23B(9C) of the NTA [22], [29]. This exception states that an act vesting in the Crown or a State statutory authority will not be a PEPA and extinguish native title unless the vesting extinguished native title in relation to the land in a manner 'apart from' the NTA [22], [29].

The Court stated that this question 'depends upon whether Division 1 of the Public Works Act is inconsistent with s 10(1) of the Racial Discrimination Act 1975 (Cth) (RDA) for the purposes of s 109 of the Constitution, insofar as it purports to extinguish native title' [29]. Division 1 would be inconsistent if it: (1) had a discriminatory operation or effect against native title holders enjoying rights to own property, and (2) s 10(1) of the RDA is unable to enhance the rights of native title holders to the level necessary to eliminate said inequality of rights with non-native title holders [30].

The Tweed Byron Local ALC (with NTSCORP agreeing) argued that the vesting under Division 1 was valid because s 45 of the Public Works Act, in common with non-native title interest holders, applied in a way that allowed native title rights and interests to be converted into a claim for compensation under that Act [31].

The Court agreed, stating that as a result there was no discrimination on the ground of race, the vesting in the Tourism Commission was valid, and it extinguished any native title in the land in whole at common law upon publication of the Appropriation Notice [33]. Although there was doubt as to whether there was an entitlement to compensation, that was not at issue here and deemed unnecessary to decide upon [32]-[33].

A determination was subsequently made that under s 61(1) of the NTA no native title exists in the application area [34].