This matter concerned a non-claimant application that native title does not exist over certain land in New South Wales. The application was brought by the Bahtabah Local Aboriginal Land Council (BLALC) under s 61(1) of the Native Title Act 1993 (Cth) (NTA) The application was unopposed by either respondent (the Attorney General of New South Wales and NTSCORP Ltd) and was therefore dealt with under s 86G of the NTA.
Background
The land had been transferred to the BLALC in fee simple, but was subject to existing native title rights. BLALC filed the application in 2019 seeking to determine that no other native title existed in order to avoid statutory restrictions which impaired the BLALC’s ability to properly ‘deal with’ the land.
The applicant provided public notice of the application in the Koori Mail, Newcastle and Lake Macquarie Star, and the National Native Title Tribunal notified the relevant parties. No native title claimant application was filed, and NTSCORP was the only joinder application. However, 28 previous native title applications had been made since 1995 by various parties in relation to parts of the area.
Submissions
Both respondents provided written submissions. The Attorney General agreed with the applicants that the Court could make the decision, and that the applicants had met all statutory requirements. NTSCORP did not consent nor oppose the application, but raised concerns regarding the absence of evidence from local Aboriginal people and notification by newspaper alone.
The BLALC contended that all requirements had been duly met. It also addressed the previous applications made over the area, acknowledging that two of the native title applications were potentially problematic: the Awabakal and Guringai People’s non-claimant application, discontinued in 2017; and the Boongary Clan of the Taurai People claim in 1999 which had not been accepted for registration. However, the BLALC submitted the numerous applications over the land which had been made subsequent to these claims and the lack of either group pursuing their claim proved these parties no longer asserted native title.
Decision
Abraham J found the court had jurisdiction to determine the application under ss 81 and 13(1) of the NTA, and that the BLALC had standing to make the application under ss 61(1) and 253 of the NTA. His Honour listed the process and notification requirements which applicants must comply with.
Abraham J relied on the analogous case of Mace v State of Queensland [2019] FCAFC 233 (Mace). According to Mace and s 86G of the NTA, the key question is whether the applicant proved on the balance of probabilities that no native title exists in the area, either because it is not claimed or cannot be proven by a claimant or because it has been extinguished. Abraham J noted the main issue in this case was the previous native title applications, but accepted BLALC’s submissions and found that these did not preclude the finding that no native title existed over the land. It was also found that newspaper notification was satisfactory. Lack of social media notification, although recommended as ‘plainly sensible in the current environment’, was not unreasonable.
As all requirements and evidentiary burdens had been met by the BLALC, Abraham J granted the application.