Griffiths J
The Court ordered that native title does not exist in relation to numerous separate areas of land and waters.
The applicant, a Local Aboriginal Land Council filed four applications for determinations under s 61(1) of the Native Title Act 1993 (Cth) (NTA) that native title does not exist in relation to certain land and waters within the Wyong and Central Coast local government areas. These proceedings are:
NSD 943 of 2017 (Darkinjung #1)
NSD 2079 of 2017 (Darkinjung #2)
NSD 2080 of 2017 (Darkinjung #3)
NSD 2080 of 2017 (Darkinjung #4)
On 3 August 2018, the Court determined that native title did not exist in relation to Darkinjung #1 (see Darkinjung Local Aboriginal Council v Attorney General of New South Wales [2018] FCA 1136). The present case deals with the remaining three applications.
The applicant’s submissions
The applicant submitted that it was within the Court’s power to make the determination sought. To make such orders, the Court must be satisfied on the balance of probabilities that native title does not exist in each of the areas, because ‘(a) native title is not claimed by, or cannot be proved by, a native title claimant; (b) native title has been extinguished by one or more prior acts of the Crown’ (at [22]). At [23], the applicant relies on the ‘guiding principle’ elicited in Deerubbin Aboriginal Land Council v Attorney-General of NSW [2017] FCA 1067 (Deerubbin) citing Woromi Local Aboriginal Land Council v Minister for Lands for NSW & Anor (No 2) [2008] FCA 1929 (Worimi No 2) by which ‘many non-claimant applications have been granted on the basis of proof of the formal requirements of the NT Act only, in the absence of any detailed evidence about the existence or otherwise of native title’ (at [53]). Thus the applicant submits that the evidence supports an ‘inference of an absence of native title’ based on a lack of respondents asserting the existence of native title in the relevant areas; no previous approved determinations of native title; and no ‘cogent assertion of native title by a competent application’ (at [25]).
The Attorney-General’s submissions
The Attorney-General submitted that: for the purposes of s 86G(1)(a) NTA the Attorney-General does not oppose the application, and regarding s 86G(1)(b) NTA the Court has the power to make the orders sought because the statutory scheme regarding notice of the application has been complied with, and where no native title determinations have been asserted or found valid, it is open for the Court to be satisfied that no native title exists.
NTSCORP’s submissions
NSCORP took the position that the Court has previously given significant weight to evidence from local Aboriginal people with traditional knowledge in relation to the area subject to a non-claimant application (Gandangara Local Aboriginal Land Council v Attorney General (NSW) [2013] FCA 646 per Griffiths J; Gandangara Local Aboriginal Council v Minister for Lands for the State of NSW [2011] FCA 383 per Perram J; Ngambri Local Aboriginal Land Council v Attorney General (NSW) [2012] FCA 1484 per Jagot J). It was submitted that the absence of any native title application or assertion ‘does not provide certainty that the land is not of cultural or traditional importance to Aboriginal people’ (at [32]).
Conclusion
His Honour, in agreement with Reeves J in Pate v State of Queensland [2019] FCA 25, notes that the general approach to a negative determination of native tile under s 61 was authoritatively held in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3:
‘It is obviously a difficult task to prove a negative proposition: Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635 at 641-2. It may be established by direct evidence, circumstantial evidence, by inference or by a combination of those things. It must nevertheless by more than a scintilla (Apollo Shower Screens (1985) 1 NSWLR 561 at 55).’
His Honour also considers prior relevant principles articulated in Deerubbin (at [37]).
His Honour holds that, in accordance with the guiding principles identified in Woromi No 2 (as delineated above at [23]), non-claimant applications have been granted on the basis of proof of formal requirements of the NTA. However, this is not indicative of a rigid approach to always be taken by the Courts; instead an approach is required which focuses upon the relevant statutory provision as applied in the particular facts and circumstances of an individual case. His Honour notes that whilst it is ‘desirable’ in many cases to consider evidence from local Aboriginal people, ‘each case necessarily turns on its own particular facts and circumstances’ (at [41]).
Griffiths J considered it reasonable to infer from the evidence that there are ‘no persons who currently believe that native tile does exists in any of the areas.’ His Honour also considered, though it was not determinative, that the applicant is a Local Aboriginal Land Council. Griffiths J holds that the Court is satisfied that relevant procedural matters were established and there was neither a prior approved determination, nor a current application, of native title regarding the relevant land (at [44]).
Regarding a technical overlap between the Darkinjung #4 Application and the previous native title determination NND2002/003, Griffiths J found this to be ‘negligible’ and thus does not prevent the Court from making the relevant determination (at [45]).