Perram J
In this matter the Lightening Ridge Local Aboriginal Land Council (Applicant) sought a declaration that 4 parcels of land, transferred to it under the Aboriginal Land Rights Act 1983 (NSW) (ALRA), and subsequently held in fee simple, were not subject to native title rights and interests.
The respondents were the Premier of New South Wales in his capacity as the State Minister under the Native Title Act 1993 (Cth) (NTA) and NTSCorp Limited, the native title service provider for Aboriginal Traditional Owners in New South Wales and the Australian Capital Territory.
Background
Section 42 of the Aboriginal Land Rights Act 1983 (NSW) prohibits a Local Aboriginal Land Council from ‘dealing’ with land vested in it unless there has been an approved determination of native title under the Native Title Act 1993 (Cth) (NTA).
The Applicant wished to develop one of the lots into an aboriginal child and family centre in conjunction with the New South Wales Department of Family and Community Services. It therefore filed an application with the Federal Court and the public were notified. No claims were received in relation to the lots and NTSCORP Limited and NSW government did not oppose the orders.
Reasoning
The Court noted that no evidence was provided about the existence or non-existence of native title.
There was evidence that the lot to be developed was previously part of a larger parcel of land which had been the subject of a 1988 lease for business purposes (Reptile Park) under the Western Lands Act 1901 (NSW).
Perram J concluded that the land was not subject to any native title because the lease was a previous exclusive possession act under s 23B of the NTA which extinguished native title under s 23E NTA. Native title had also been extinguished in relation to the remaining lots.
Perram J noted that the prohibition restricting Local Aboriginal Land Councils from ‘dealing’ with land, in the absence of an approved determination of no native title, burdens those whom it was designed to assist and suggested the New South Wales government consider amending the ALRA.
Orders
The Court declared that the specific parcels of land were not subject to native title and ordered no costs be awarded.