Griffiths J
This matter answered nine series of separate questions in relation to an application under s 61 of the Native TItle Act 1993 (Cth) (NTA) for the determination of native title, filed by the Ngemba and Ngiyampaa People in New South Wales. The Attorney General of New South Wales (NSW) was the primary respondent, along with 54 others including the New South Wales Aboriginal Land Council (NSWALC) and other Aboriginal Land Councils. This matter was highly complex: it concerned numerous parcels of land with various associated land tenures and referred to hundreds of State and Commonwealth statutes.
Background
The overall claim was for both exclusive and non-exclusive native title over 26,714 parcels of land in New South Wales. This dispute concerned just one per cent of the total claim area, approximately 51km2.
The content of the dispute related to whether native title had been wholly or partially extinguished by competing land interests under the NTA or through common law. Nearly all of the separate questions related to types of statutory leases of Crown land within the NSW, with the exception of a reservation. Many issues related to extended leases or additional extensions.
The parties agreed upon separate questions for the Court, and a hearing was held in July 2020. Extensive written submissions were supplied by each party.
Decision
Griffiths J separated the issues of extinguishment for the many different tenures into:
Those that could be classified as a ’scheduled interest‘ under NTA s 23B(2)(c)(i),
Those that conferred ‘a right of exclusive possession over particular land or waters' under NTA s 23B(2)(c)(viii).
This necessarily involved an assessment of whether a tenure was wholly inconsistent and thereby extinguished native title. Griffiths J highlighted that these issues had to be determined on ‘individual facts, including the relevant terms and conditions of any particular land tenure, the relevant terms of the legislative regime and any relevant preceding legislative history,’ noting the ‘grave danger’ of resolving issues ‘simply by “cherry-picking” certain aspects’ of precedent [13].
The questions determined in this matter regarding leases established the legal certainty for the native title claim to continue over the non-extinguished areas.