This matter concerned a non-claimant application made by the Awabakal Local Aboriginal Land Council in relation to Lot 103 in Deposited Plan 758769 in the Parish of Newcastle, County of Northumberland, New South Wales. The land is on the corner of Hunter and Bolton Streets, Newcastle, the street address being 96 Hunter Street, Newcastle. The existing building on the land is the old Newcastle Post Office, built between 1900 and 1903. The applicant holds an estate in fee simple but, pursuant to s 36(9) of the Aboriginal Land Rights Act, subject to any native title rights and interests which existed in relation to the land immediately prior to its transfer to the applicant. The respondents to the application, the Attorney General of New South Wales and NTSCORP Ltd did not oppose the application.
The applicant submitted that the determination sought was within the Court’s power for the following reasons:
the application was a native title determination application made under s 61 NTA. The applicant was the registered proprietor of the land. Accordingly, the applicant was a person who held a non-native title interest in relation to the whole of the land subject to the non-claimant application;
the Court had jurisdiction to hear and determine the application under s 81;
the notification period specified under s 66 expired on 23 April 2018 and the Court may make a determination of native title pursuant to s 86G after the notification period had expired;
the Court must not make a determination of native title in relation to an area if there was already a determination for that area. The NNTT’s overlap report confirmed that there was no determination of native title for the land; and
the proposed order set out in Attachment A to the applicant’s submissions included all of the details required under s 225.
The applicant submitted that in order to make the orders sought by the applicant, the Court must be satisfied on the balance of probabilities that native title did not exist in relation to the land either:
because native title was not claimed by, or could not be proved by, a native title claimant; or
because native title had been extinguished by one or more prior acts of the Crown.
The applicant submitted that the s 66 NTA notification period had not elicited any claimant applications in relation to the land nor had any party sought to be joined to the application as a respondent to assert that native title existed in the land. There were no previous approved determinations of native title in relation to the land. The applicant submitted that it was not necessary to consider evidence of extinguishment given the as a result.
Robertson J was satisfied that an order in the terms sought by the applicant is within the power of the Court and that on the balance of probabilities native title does not exist in relation to the land. His Honour found it unnecessary to make any findings in relation to extinguishment. Robertson J considered it appropriate to make the orders the applicant sought without a hearing.