Background
The West Wyalong Local Aboriginal Land Council made a non-claimant application that no native title existed in the application area. They were the registered proprietor of an estate in fee simple in relation to ten parcels of land in the application area. Third parties had approached the applicant seeking to obtain interests in the land. In order to pursue those proposals, s 42 of the Aboriginal Land Rights Act 1983 (NSW) provides that the applicant had to have an approved determination of native title.
Reasons for decision
Three factors stand out in Stewart J’s decision. Firstly, his Honour accepted the evidence given by two witnesses with established links to the application area. They attested that the lands were not culturally significant under the traditional laws or customs of the Wiradjuri People.
Secondly, his Honour took into consideration a previous native title claim by the Mooka People which was filed in 2000. This claim was discontinued in 2002. His Honour said that there was no substantive evidence that the Mooka People had maintained an interest of any kind in the application area. No party had indicated opposition to the application, nor was there overlap with any registered or unregistered claims.
Thirdly, his Honour noted s 233(1)(b) of the Native Title Act 1993 (Cth) requires a connection to land or waters. His Honour noted the lots of land were highly impacted by past use and surrounded by residential, commercial, and industrial buildings. An assessment undertaken by archaeologists stated there was a low likelihood of Aboriginal objects being present due to the disturbances of the land.
Additionally, Stewart J cited seventeen principles for deciding non-claimant applications which were summarised in Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113.
Conclusion
These factors taken together led Stewart J to conclude that, based on the balance of probabilities, no native title exists in the application area. His Honour made a determination as such.