Mansfield J
In this matter, the Court considered an interlocutory application by Milan and Linda Millison (the Millisons) for an order that s 47B of the Native Title Act 1993 (Cth) (NTA), which allows the extinguishment of native title to be disregarded in some circumstances, did not apply to a particular area of vacant Crown Land in the Adelaide Plains area because it was subject to a resumption process.
The respondents were the State of South Australia and others.
Background
The Millisons are the owners of a property at 30 Whiting Street St Kilda, which has a sea frontage. Between their property and the beach at St Kilda is an area of land of 279 m2, described as Allotment 51, formed part of an application for determination of native title over the Adelaid Plains and related areas. Allotment 51 was, until 21 December 1979, part of the properties at 30 and 32 Whiting Street St Kilda. It was excised from those properties and reserved by South Australia in 1980, potentially in anticipation of it (and other land) being declared a coastal reserve.
The Millisons want part of Allotment 51 to be merged with their existing land. They had been told that s 47B of the NTA prevents the State of South Australia from considering or granting their application because Allotment 51 is part of the claim area, and may therefore be affected by a determination of the claim. .
They argued that when the native title application was filed, the State was in the process of acquiring the land for a public purpose.
Consideration
Mansfield J considered the evidence concerning the creation and purpose of the transfer of Allotment 51 to the Minister for Lands and concluded that the Millisons' application must fail because, at the relevant times, the Crown, through the Minister, did not have a bona fide intention to use Allotment 51 for a public purpose or a particular purpose and the land was not subject to a resumption process before the native title determination is made.
Therefore, the allotment remains available for consideration as part of the claim area.
Conclusion
The Court indicated that it would order that the Millisons cease to be a party at the end of 28 days and should file and serve notice if they intend to remain as parties.