Background
On 17 September 2020, the applicant made a non-claimant application for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (NTA). The application related to the land and waters in 26 areas of approximately 40.5 hectares within the Lake Macquarie City Council in New South Wales (the land). The applicant was a Local Aboriginal Land Council incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALR). The land in the areas was transferred to the applicant in fee simple but was subject to any existing native title rights preserved under s 36(9) of the ALR.
The applicant was seeking the determination because of the effect of ss 36(9) and ss 42 of the ALR, which constrain the ability of an Aboriginal Land Council to handle the land, within the meaning of s 40(1) of the ALR.
The first respondent, The Attorney General of New South Wales filed a notice pursuant to s 86G of the NTA that it did not oppose the orders sought by the applicant. The second respondent, NTSCORP Limited, indicated that it neither consented nor opposed orders consistent with the terms sought.
Submissions
The applicant relied on an affidavit of Ms Ashley Maree Williams sworn 14 April 2021, the CEO of the Birban Local Aboriginal Land Council and an affidavit of Mr Christopher Malcolm Turner affirmed 15 April 2021, the solicitor of the firm who represented the applicant in the proceedings.
Considerations
There were no claimant applications within the specified notification period of 18 November 2020 to 17 February 2021. There were also no relevant entries to the Register of Native Title Claims.
On 25 March 2021, a search of the National Native Title Tribunal’s (NNTT) determinations database revealed that there were five previous determinations in the area that native title does not exist on the land. Thus, these became the key evidentiary issues. The applicant’s evidence suggested that two previous registered claimant applications had external boundaries that overlapped the land. The first was a claim by the Boongary Claim of the Taurai People and the second was a claim by the Awabakal and Guringai People.
Boongary Clan Claim
This claim was filed on 31 March 1998 and discontinued on 22 June 2000. There were numerous negative determinations of native title in relation to other parts of the Boongary Clan Claim. This claim was not accepted to registration as the NNTT indicated there was not a factual basis for the assertion that there existed traditional laws acknowledged by, and the traditional customs observed by, the native title claim group that give rise to the claim, for the purposes of s 190B(5)(c) of the NTA. This was accepted by the Court.
Awabakal and Guringai Claim
The application for the Awabakal and Guringai claim was filed on 13 May 2013, registered from 13 June 2013 until 30 June 2017 and ultimately discontinued on 28 June 2017. It was submitted by the applicant in the present case that all the separate parcels which comprised the land was within the external boundary of the Awabakal and Guringai People Claim.
Abraham J accepted the reasons that were identified in Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1236, which concerned an unopposed and accepted non-claimant application in the Lake Macquarie City Council local government area.
Her Honour also was informed by the Attorney General that there was another previous claim by the Awabakal People made on 4 July 2012. This claim fell within the area of the other Awabakal and Guringai claim, however, was discontinued on 9 May 2014.
Conclusion
The Court was satisfied that the prior claimants were discontinued many years ago and therefore had no relevance to the present case. Her Honour held that no native title claims existed in the area and the orders sought were in the Court’s power. A negative determination was made.