Perry J
This matter concerned a non-claimant application for a negative determination of native title over three parcels of land in Narrandera, New South Wales (NSW). The application was filed by the Leeton and District Local Aboriginal Land Council (the Land Council) under s 61(1) of the Native Title Act 1993 (Cth) (NTA).The Attorney General for NSWand NTSCORP Limited were the respective respondents.
Background
The Land Council had held the relevant land in fee simple since 2011. The land was transferred by the State under s 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA), after a successful claim by the Land Council in 2007. The Land Council was prevented from certain dealings with the land under s 42(2) of the ALRA, and hence sought a determination within the meaning of s 42(1) of the ALRA.
Both the Land Council and the State contended that any native title over the three parcels (described as lot 18, lot 264 and lot 280) was extinguished by grants that constituted acts of previous exclusive possession under s 23B(2) of the NTA. Lot 18 was granted as an estate in fee simple in 1886, and a special lease over lots 264 and 280 was granted in 1923. The application was unopposed, and the State and NTSCORP Limited each filed a notice under s 86G of the NTA to this effect.
Decision
Perry J stipulated the rules established by the NTA and case law that must be satisfied prior to making a determination that native title does not exist. The need for caution in making such a determination was also noted. Given there had never been a native title application over the relevant land and the National Native Title Tribunal had notified the public of the application and no claims had been filed subsequently, Her Honour found these requirements had been satisfied. As such, the Land Council was found to have successfully discharged its onus and it was upheld that native title did not exist over the three lots.