Griffiths J
Introduction
In this proceeding the applicant (Deerubbin) sought a determination under s 86G of the Native Title ACt 1993 (Cth) (NTA) that native title does not exist in relation to a single parcel of land approximately 0.178 square kilometres within the Hills Shire Council local government area. Deerubbin sought this determination because the existence of native title would restrict its current and future ability to deal with the parcel as a result of ss 36(9) and 42 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The respondents did not oppose the orders sought. In order for the Court to make the orders sought, Deerubbin had to meet certain formal requirements, outlined below.
Notification under s 66 of the NTA
The notification period for this application was from 12 February to 11 May 2020. The affidavit of Christopher Malcolm Turner (Turner affidavit) annexed correspondence from an Applications Officer of the National Native Title Tribunal (NNTT) to Deerubbin’s solicitors dated 22 January 2020 advising of the notification period and attaching a copy of the public notice for reference. The NNTT advised that the application would be publicly notified in the Hills Shire Times and the Koori Mail on 28 and 29 January respectively. The notice was confirmed published and occupied approximately a quarter of a page in each publication. The Turner affidavit stated that no person filed a native title claim over the application area during the notice period, and no claim had been filed since. Nor had there been an application for joinder. A misdescription in the notice as to the size of the determination area went undisputed, and His Honour confirmed it did not relate to any particular mandatory item in s 66(3)(d) of the NTA or cl 6(5) of the Native Title (Notices) Determination 2011 (No 1) (Cth).
Other formal requirements
Having regard to the Turner affidavit the Court considered that the determination sought was within the Court’s power for the following reasons:
Section 13(1)(a) of the NTA provides that an application may be made to the Court for a determination of native title in relation to an area for which there is no approved determination of native title.
An application for determination of native title may be made by inter alia, a person who holds a non-native title interest in relation to the whole of the area for the purposes of s 61(1) of the NTA.
The application was made in the prescribed form under s 61(5) of the NTA.
The relevant state minister and representative body had received notice of the application.
Public notice was given under s 66 of the NTA.
The notification period specified under s 66 had ended
There was no overlap between the determination area and any previous approved determination of native title for the purposes of ss 13(1) and 68 of the NTA.
As the application sought a determination that native title does not exist, the Court was not required to determine the matters under s 225 of the NTA.
The Court had jurisdiction to hear and determine the application under s 81 of the NTA.
Extinguishment
The relevant Division for the purposes of this application was Div 2B of the NTA, which confirms the past extinguishment of native title by valid or validated acts, which are defined as ‘previous exclusive possession acts’ (PEPA) or ‘previous non-exclusive possession acts.’ Section 23B(2) provides that an act is a PEPA if it is valid, it took place before 23 December 1996 and it consists of the granting or vesting of, inter alia, a scheduled interest. The Court was satisfied that Special Lease 1929-1 (1930 Special Lease) was a PEPA for the purposes of s 23B(2), and any native title was extinguished by the granting of that lease.
Conclusion
For the above reasons, the Court found it appropriate to make the orders sought by Deerubbin.