Background
This proceeding was a non-claimant application for determination of native title made by Awabakal Aboriginal Land Council (Awabakal) under s 61(1) of the Native Title Act 1993 (Cth) (NTA). The application related to 5 parcels of land in the Newcastle and Lake Macquarie area. Awabakal sought a determination under s 86G of the NTA that native title does not exist in relation to land. This was because Awabakal’s current and future ability to deal with the application areas was restricted as a result of s 36(9) and 42 of the Aboriginal Land Rights Act 1983 (NSW).
Relevant Law
In Mace v State of Queensland [2019] FCAFC 233 the Court held that no native title exists in relation to an application area by proving, on the balance of probabilities, that:
Native title is not claimed by or cannot be proved by a native title claimant; or
Any native title which may have existed has been extinguished
Decision
The application went unopposed, however, the parties had differing positions as to whether it should be decided on the basis of that native title has not been claimed or, alternatively, that native title has been extinguished. Awabakal’s primary submission was that native title had not been claimed, which was accepted by the Court. Additionally, the Court noted that the parties had agreed that native title had been extinguished by way of a previous exclusive possession act, which arises under division 2B of the NTA, and by way of a lease granted pursuant to s 75B of the Crown Lands Consolidation Act 1913 (NSW). For these reasons the Court concluded that orders be made that native title does not exist pursuant to s 86G of the NTA.