Moore, Mansfield and Perram JJ
This case was an appeal from a non-claimant application under the Native Title Act 1993 (Cth) (NTA) for an approved determination of native title. At first instance the Worimi Aboriginal Land Council applied for a declaration that no native title existed in land at Boat Harbour in New South Wales. The Land Council lodged a non-claimant application that the land was not of cultural significance to Aboriginal people in the area. The appellant gave notice that he wished to be party to the application and was joined as a respondent, claiming native title interests in the land. The appellant had also filed two claimant applications in relation to the land which were both struck out. On 18 December 2008, the primary judge found that no native title existed in the land. The appeal was heard by the Full Court of the Federal Court of Australia. The court upheld the findings of the trial judge that on the evidence, there was no ongoing connection between the native title rights and interests that existed pre-sovereignty. They considered the following appeal grounds:
The appellant suggested that based on s 61 of the NTA, the onus was on the respondent to establish the nature of pre-sovereignty native title rights and interest relating to that area of land and then ‘deconstruct’ to show the current rights in the land, in order to prove a lack of continuity- that native title no longer exists. The court agreed with the trial judge that it would only be necessary for a non-claimant applicant to prove this is certain circumstances, but not in every case. It was not necessary in this case.
The appellant suggested that the trial judge erred in the weight she gave to the appellant’s evidence in her assessment of the evidence in finding that the necessary contemporary connection with the land did not exist. The Full Court found there was sufficient evidence to support the conclusion of the trial judge, that the appellant’s evidence did not have sufficient substance to cast doubt on other evidence that had been accepted.
The Full Court found that the trial judge’s words had been misconceived and confirmed that while in the absence of a claimant application, the court is entitled to be satisfied that when no other claim groups assert a claim to hold native title, ‘this supports an inference of an absence of native title over the land’. They reinforced that this does not imply that without anything more this supports a declaration of native title but found that there was no error in the expression of the trial judge.