Jagot J
In this non-claimant application, the Jerrinja Local Aboriginal Land Council (JLALC) sought a declaration that native title rights and interests do not exist in relation to an urban plot of land in the township of Shoalhaven Heads. The application was made in accordance with s 42(1) of the Aboriginal Land Rights Act 1983 (NSW), which prevents an Aboriginal Land Council from dealing with land unless it has obtained a determination that there is no native title.
The JLALC was authorised as a person holding a non-native title interest in the land to make an application for a native title determination under s 61(1) of the Native Title Act 1993 (Cth). The Jerringa Traditional Owners Aboriginal Corporation (JTOAC) objected to the non-claimant application and made a native title claim to the land. The JTOAC claimant application was summarily dismissed on the basis that the application could not possibly succeed or proceed in the form in which it had been filed. The JLALC application proceeded, with JTOAC and the Attorney-General of NSW as respondents.
It was accepted that JLALC was required to prove on the balance of probabilities that native title does not exist in relation to the lot of land. Justice Jagot considered a number of affidavits and oral evidence from members of the Jerrinja People, which asserted a continuing connection with Jerrinja land but did not assert or believe that there continued to be any identifiable native title right or interest in the specific plot of land. Particular weight was placed on the urban location of the lot.
JTOAC disputed the focus on a specific connection with the lot and claimed that the primary evidence of JLALC was that the land is not "of special significance". JTOAC submitted that if traditional laws and customs apply to Coolangatta Mountain, it must also apply to the land and waters surrounding it, without discrimination as to whether the surrounding land is significant or not.
Justice Jagot considered the evidence and noted that all of the witnesses for JLALC asserted a lack of connection to the lot and was not persuaded by the evidence of JTOAC that there was any particular use of the lot or continuing connection with the Jerrinja People by reason of traditional law and custom.
As a result, the Court was satisified, on the balance of probabilities, that no native title rights or interests exist in relation to the determination area.
Justice Jagot highlighted the potential for s 42(1) of the Aboriginal Land Rights Act to cause dispute among Indigenous communities, as evidenced in the facts of this case.