Abraham J
This decision concerned a non-claimant application for native title, filed by the Griffith Local Aboriginal Land Council (GLALC), under s 61(1) of the Native Title Act 1993 (Cth) (NTA). The application sought an order that native title did not exist over an area in Griffith, New South Wales. The application was not opposed by the respondents, the Attorney General of New South Wales or NTSCORP.
Background
In December 2016, the Minister for Primary Industries and Lands and Water granted GLALC the relevant land under s 36(5A) of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). The transfer became effective as of February 2018, giving GLALC the estate in fee simple.
GLALC filed the application that no native title existed over the area in August 2019. GLALC holds a non-native title interest as the registered proprietor of the land.
In the decision, it was reiterated that a non-claimant applicant must prove on the balance of probabilities that native title does not exist in relation to the land either because it is not claimed or cannot be proven by a native title claimant, or because native title has been extinguished by one or more prior acts of the Crown [18]. GLALC relied on the latter, submitting that native title was extinguished in the area when the Crown vested an estate in fee simple in 1912 under the Public Works Act 1900 (NSW). It was argued that this met the previous exclusive possession act requirements set out in s 23B of the NTA. No approved determination of native title had been made for the Land and there were no other native title determination applications over the land. The applicant also provided evidence that formal requirements had been complied with, including the notification procedures.
Decision
The court was concerned by an unopposed non-claimant application. However, as the statutory requirements necessary to prove that no native title existed over the area had been satisfied, GLALC’s application was granted.