Robertson J
Robertson J determined that no native title exists in three parcels of land located in Randwick, New South Wales.
Background
This determination concerns an amended application filed by the applicant on 6 July 2018 for a determination that native title does not exist. All three parcels of land were transferred to the applicant under s 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA) and the applicant continues to hold the fee simple as registered proprietor.
No native title claimant applications were filed during or subsequent to the notification period, nor were any notices of intention to become a party filed during the notification period, other than by NTSCORP, the native title representative body.
Extinguishment
The applicant submitted that the land was the subject of a grant to the Board of Fire Commissioners of New South Wales which “…was of a freehold estate and was a previous exclusive possession act under s 23B(2)(c)(ii) of the Native Title Act 1993 (Cth), which under section 20(1) of the Native Title (New South Wales) Act 1994 (NSW) wholly extinguished native title.” The applicant, NTSCORP and the Attorney General of New South Wales each submitted that the Crown grant to the Board of the estate in fee simple for use as a fire station wholly extinguished native title in the land.
On the evidence, His Honour was satisfied that native title was extinguished, and noted that the application was unopposed. In doing so Robertson J noted that to the extent that Pate v State of Queensland [2019] FCA 25 may be relevant, in circumstances where an unopposed application is made by an Aboriginal Land Council in New South Wales, a less stringent approach to the evidence necessary to discharge the onus of proof may be warranted.