Griffiths J
This matter dealt with an application by the Gandangara Local Aboriginal Land Council (the Applicant) for a determination that native title does not exist in relation to a particular lot of land (33.72 hectares) close to urban development in the Shire of Sutherland in New South Wales.
The Applicant had been granted the land, as an estate in fee simple subject to any native title rights and interests in the land, as part of a successful land claim under the Aboriginal Land Rights Act 1983 (NSW) (ALR). The Applicant wanted to sell the land to a related entity for residential development and maintain a significant part for conservation.
Under s 42(1) of the ALR the Applicant could not deal with the land unless an approved determination of native title had been made. An application for a determination was lodged, although it was significantly delayed as a result of evidence requirements.
No native title rights or interests exist in the land
The Applicant’s original basis for the application was that no native title rights or interests exist in the land and evidence in the form of affidavits were provided in support. No claim was made that native title rights had been extinguished.
However, the Attorney-General of NSW claimed the evidence did not demonstrate that no native title rights and interests existed in the relevant land. This was because the Applicant's meeting resolution showed the majority of members had considered the cultural and heritage significance of the land. The resolution did not state that the land "was not of any cultural significance".
Particular attention was drawn to the Applicant’s failure to adduce affidavit evidence of a qualified Aboriginal elder with knowledge of the cultural and heritage significance of the land, ordinarily the most valuable evidence accompanying these types of applications.
The Applicant was given the opportunity to provide further evidence in support of the application, which included: an affidavit by an Aboriginal elder; an affidavit of a project manager with the Applicant which provided further evidence of the land grant, additional resolutions of the Gandangara Local Aboriginal Land Council; and a heritage assessment.
Extinguishment of native title rights or interests
The Applicant made an additional claim that any native title rights which may have existed had been wholly extinguished as a result of a previous dealings (a ‘previous exclusive possession act’ is a dealing with land which can diminish, impair or extinguish native title). Although the Applicant’s evidence was very limited, the Attorney-General of NSW provided evidence of the granting of a fee simple interests in the land between 1831 and 1888 which constituted previous exclusive possession acts under s 23B of the Native Title Act 1993 (Cth).
On the basis of all of the evidence provided, the Court was satisfied that no native title rights or interests exist in the land.