Worimi Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 1270

Year: 
2019
Jurisdiction: 
New South Wales
Forum: 
Federal Court
Legislation considered: 
s 66 Native Title Act 1993 (Cth)
s 61 Native Title Act 1993 (Cth)
Aboriginal Land Rights Act 1983 (NSW)
s 86G Native Title Act 1993 (Cth)

Jagot J

In this matter the Court considered an application under s 61(1) of the Native Title Act 1993 (Cth) (NTA) by Worimi Local Aboriginal Land Council (WLALC), the registered owner of the land, for a determination that native title does not exist in relation to a single lot, approximately 0.6 square kilometres in size, at Stockton in the Parish of Stowell, County of Gloucester, New South Wales.

The respondent was the Attorney General of New South Wales.

Background

 WLALC brought the application, as the registered proprietor of the land, following a successful claim under the  Aboriginal Land Rights Act 1983 (NSW) (ALRA) as s 42 of the ALRA prevent the WLALC from dealing with the land unless the land is subject to an approved determination of native title under the NTA.

Consideration

Jaogt J considered s 86G of the NTA, which confers powers on the Court to determine such a matter where the application is unopposed, and the Court is satisfied that the order is appropriate.

Unopposed application

On the facts, the application was unopposed as no other party has been joined to the proceeding and the sole respondent had filed a notice consistent with s 86G of the NTA.

Appropriateness of the order sought

Her Honour noted that there are 2 bases on which the Court may be satisfied, on the balance of probabilities, that native title does not exist in an area of land and waters:

(a) native title does not presently exist because it is not claimed by or cannot be proved by a native title claimant; or

(b) native title has been extinguished by prior acts of the Crown.

WLALC relied on ground (a).

Her Honour  noted that the Court may be satisifed that native title does not presently exist if the notification requirements of s 66 of the NTA are complied with and it has been confirmed that there is no previously approved determination, or current application, over the relevant area.

The Court considered the potential implications of the recent decision in Pate v State of Queensland [2019] FCA 25 (Pate) where Reeves J declined to exercise his discretion under s 86 of the NTA to make a negative determination in an unopposed non-claimant application as the applicant had not provided ‘such evidence as the facts and circumstances of the individual case dictate is sufficient to discharge his or her onus to provide that no native title exists…’.

Pate was distinguished from the present case on the basis that a previously discontinued native title application, which fell within the external boundary of the land was not relevant as it did not claim any exclusive native title, at [37].

Importantly, Jagot J highlighted fact that the applicant in this matter is a Local Aboriginal Land Council, subject to the ALRA, and which ‘has been forced to make this application for a negative determination so that it may deal with the land’, at [38]. This ‘peculiar circumstance’ is in direct contrast to Pate, in which Ms Pate was not an Aboriginal person, nor was there any Queensland State legislation forcing her to make such an application for negative determination. This meant that Pate was confined to its particular set of facts and circumstances.

As the application was unopposed and has been duly notified without another individual or group coming forward to claim native title over the land it was clear that there is no other interest, in terms of native title, which impedes the granting of the application.

For these reasons, Jagot J was satisfied that the Court should make the negative determination.  

Orders

The Court determined that:

  1. Native title does not exist in relation to the area of land and waters in the State of New South Wales comprised in and known as Lot 227 in DP 1097995 at Stockton in the Parish of Stowell, County of Gloucester.
  2. No order as to costs.