Jagot J
In this case Jagot J held that there was no native title over a parcel of land in Narooma, NSW known as ‘Isabel Street’ pursuant to a non-claimant application under s 61(1) of the Native Title Act 1993 (Cth) (‘NTA’) by the Wagoona Local Aboriginal Land Council (WLALC).
Background
The Isabel Street land was transferred to the WLALC under the Aboriginal Land Rights Act 1983 (NSW) (‘ALRA’), subject to existing native title rights and interests (ALRA s 36(9)). Section 42(1) of the ALRA provides that an Aboriginal Land Council must not deal with land granted to it under ALRA s 39(9) unless the land is the subject of an approved determination of native title.
In 2017 the South Coast people submitted a claimant application for a determination of native title over land which included Isabel Street. The South Coast people opposed WLALC’s application and were joined as respondents to the proceedings, together with the relevant Native Title Representative Body (NTRB), NTSCorp.
The Court held that the relevant test was whether WLALC could establish on the balance of probabilities that no native title exists over the land, consistent with the principles in Worimi v Worimi Local Aboriginal Land Council [2010] FCAFC 3 (‘Worimi’).
Evidence
Evidence from a number of Aboriginal witnesses indicated that Isabel Street was not used for cultural purposes or other activities such as camping. Furthermore, that the area was not regarded as significant and was known as being a ‘tip’.
WLAC’s argument
WLAC argued that there was no native title because of:
the resolutions conveying an absence of native title in the land;
the quantity and quality of primary evidence from Aboriginal knowledge holders supporting the same conclusion;
the supporting evidence of non-Aboriginal witnesses;
factors of white settlement and associated dispossession;
the weakness of the South Coast’s People’s evidence; and
the absence of evidence.
Decision
Jagot J noted that the existence or otherwise of native title in relation to land did not depend on the land being of ‘significance’ to Aboriginal people, however, found that Aboriginal views on the significance of the land were relevant to the question of whether there are rights and interests possessed by the South Coast people under their traditional laws and customs whereby they have a connection with the land. This is because it went to whether there was a continuing connection to the land. Interpreting the witness’ evidence in this light, Her Honour did not accept WLALC’s submission that the evidence did not deal with the existence or otherwise of native title on Isabel Street.
Many witnesses gave evidence about their rights under traditional laws and customs in relation to all of Yuin traditional country. Her Honour did not consider that this indicated a continuing connection to all lands and waters within the claim area, including Isabel Street. Rather, Her Honour found that the evidence showed a profound discontinuity of connection with the Isabel Street land and concluded that there was no native title over the Isabel Street land.
Extinguishment
Because Jagot J found that there was no native title over the land, the question of whether native title had been extinguished by sewage infrastructure did not arise. However, Her Honour briefly considered the issue, concluding that native title would be validly extinguished on the eastern side of the Isabel Street land under the public works provisions, but not on the northern side because of insufficient evidence that the relevant works were constructed before 23 December 1996.